Utteridge v AAI Limited t/as Suncorp Insurance
[2024] NSWPICMP 885
•10 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Utteridge v AAI Limited t/as Suncorp Insurance [2024] NSWPICMP 885 |
CLAIMANT: | Louise Utteridge |
INSURER: | AAI Limited t/as Suncorp Insurance |
REVIEW PANEL | |
MEMBER: | Cassidy |
MEDICAL ASSESSOR: | Gorman |
MEDICAL ASSESSOR: | Moloney |
DATE OF DECISION: | 10 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for assessment of whole person impairment (WPI); Medical Assessor (MA) Kuru determined WPI at 2%; claimant’s application for review under section 7.26; claimant alleged injury to right knee (2%), thoracic endplate fracture at T8 (not caused) and sacral fracture (0% not caused); MA Kuru examined claimant and accessed radiology from hospital and referred to it in his decision on causation; claimant re-examined by one member of Panel; radiology considered; Panel satisfied claimant injuries right knee, thoracic spine and sacrum; insurer conceded 2% impairment to knee; Panel accepted thoracic fracture caused by accident, undisplaced and one level only – 5% WPI; multiple references to Guidelines and AMA 4 Guides referred to; sacral fractures provided for in pelvic injury part of Guides; clause 6.154 says that pelvic fractures must be assessed under pelvic injury (and therefore not as part of the lumbosacral spine); healed fracture without displacement but with residual signs gives WPI of 0%; Held – claimant’s WPI not greater than 10% but different degree to MA Kuru’s assessment therefore certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Kuru dated 16 February 2024. 2. Certifies that the degree of the claimant’s permanent impairment resulting from the injuries caused by the motor accident on 17 December 2019 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Louise Utteridge was involved in a motor accident on 17 December 2019. She was a passenger in a truck when a tyre on the truck blew out and the truck went off the side of the road. The claimant had, shortly before, undone her seatbelt to reach for something in the cabin and she was therefore unrestrained at the time the truck ran off the road.
The claimant says she injured her back and right knee in the accident and made a claim for statutory benefits and then damages against Suncorp, the third-party insurer of the vehicle that she was travelling at the time of 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.
On 16 February 2024 Medical Assessor Kuru determined the claimant did not have a WPI of greater than 10%. The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 13 May 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 14 May 2024 the President’s delegate convened this Review Panel (Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Ms Utteridge’s claim and her entitlement 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 Kuru’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” (s 7.26(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’s delegate arranges for the application to be referred to a review panel consisting of a member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not 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” (s 7.263A).
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.
Clause 6.2 of the Guidelines acknowledges that the Guidelines have been based on the AMA 4 Guides and says:
“However, in this Part of the Motor Accident Guidelines, there are some very significant departures from that document. A medical assessor undertaking impairment assessments for the purposes of the Act must read this Part in conjunction with the AMA4 Guides. This Part is definitive with regard to the matters it addresses. Where it is silent on an issue, the AMA4 Guides should be followed.”
ASSESSMENT UNDER REVIEW
Medical Assessor Kuru examined the claimant on 16 February 2024 and issued his certificate the same day. He confirms at [2] that he was to assess the following injuries:
(a) thoracic spine – T8 endplate vertebral fracture with 10% loss of body height;
(b) lumbar spine – S3 vertebral cortex buckle fracture, and
(c) right knee – chronic right knee patellofemoral dysfunction secondary to an acute impaction soft tissue injury.
Medical Assessor Kuru at [5] said he had considered the documents and reviewed the claimant’s CT scans through the NSW Health Department’s Radiology Information Systems & Picture Archiving & Communications System (RIS-PACS).
The claimant gave a history of the accident and said she was taken by ambulance to Dubbo Hospital and was discharged the next day. She said she had significant pain in her back on the way home. She said she continued to experience discomfort and now has interscapular pain and pain in her right knee.
The Medical Assessor documented at [13] the claimant’s current treatment which is limited to Tramadol for pain. She is said to have not had an exercise-based rehabilitation plan, injections or therapy for her knee.
The thoracic spine was normal, the lower limbs were neurologically intact and there were no radicular symptoms or signs of radiculopathy. Knee range of motion was normal.
Medical Assessor Kuru says:
“CT scan from the date of injury is reported as demonstrating possible compression fracture of T8 and a buckle fracture of the S3 segment. Having reviewed the imaging, as a practising Spinal Surgeon involved in trauma care, I do not believe they demonstrate acute injuries to T8 or S3.”
At [18] Medical Assessor Kuru determined there was no evidence of an acute compression fracture of T8 or S3. He found chronic right knee patellofemoral dysfunction secondary to an acute soft tissue injury.
He assessed a 2% impairment for the right knee.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant says at [7]:
(a) the Medical Assessor’s reasons do not include any findings in relation to the lumbar spine (a)-(c) and (g), and
(b) the Medical Assessor did not provide sufficient reasoning as to why the CT scans did not demonstrate acute fractures (d)-(e) and (h).
The claimant notes that a less than 25% compression fracture of a thoracic vertebra or sacral vertebra would be 5% each hence there is a material error.
Insurer’s submissions
The insurer says at [13] that the CT scan report documented “suspected” fractures and that the Medical Assessor has accessed the actual images.
The insurer says that at [17] the Medical Assessor has noted he is a practising spinal surgeon and that at [18] he was therefore qualified to make his findings as to whether the radiological findings were acute or not.
The insurer says therefore there is no error. The insurer noted that neither Dr Dias or Dr Burke (who are occupational physicians) did not have the radiology or access to the images.
Procedural history
On 22 May 2024, the Panel issued directions to the parties. The Panel sought a bundle of documents relevant to the Review from each of the parties.
The claimant provided a bundle comprising 535 pages on 31 May 2024 and the insurer provided a bundle of 148 pages of documents on 4 June 2024.
The Panel met on 13 June 2024 to discuss the matter. On 17 June 2024, the Panel reported to the parties. The Panel noted the Medical Assessor was asked to assess the thoracic spine, lumbar spine and right knee. The Panel advised that a review of the imaging studies (films) would be required. The Panel noted there were no submissions concerning the right knee and queried with the parties agreed with the 2% WPI Medical Assessor Kuru found for the right knee impairment.
The Panel directed the parties to respond and for the claimant to provide access to or copies of the radiological studies. A further teleconference was set which was subsequently deferred due to the claimant’s difficulties in obtaining the radiological images.
The insurer responded to the Panel’s report and directions on 25 June 2024 advising:
(a) the insurer agrees that the assessment by Medical Assessor Kuru of 2% WPI for the right knee is correct as causally related to the accident and there is no need for the Panel to assess that injury;
(b) the issue in dispute is the interpretation of the spinal imaging, and
(c) subject to agreement by the claimant the insurer sees no need for the claimant to be re-examined and any necessary history can be taken via MS Teams.
The claimant responded and provided the imaging studies to the Panel.
On 27 August 2024, Medical Assessor Moloney and Member Cassidy were advised that Medical Assessor Stubbs could no longer continue on the Panel and that Medical Assessor Gorman had been appointed to the Panel in his place.
On 12 September 2024 the claimant further responded to the previous Panel’s directions advising the claimant agreed with the right knee assessment of 2% and that the Panel did not need to re-examine this injury.
In terms of the lumbar and thoracic spine injuries the claimant submitted that a re-examination might be appropriate to address whether there is an impairment extending beyond the interpretation of the spinal radiology.
The newly constituted Panel met on 12 September 2024 and noted the agreement about the knee impairment, confirmed the dispute about the method of assessment and drew the parties’ attention to cl 6.115 of the Guidelines and that the three regions of the spine are the cervical, thoracic and lumbar and that cl 6.154 suggests a sacral fracture is assessed under s 3.4 of AMA 4 Guides. In the light of the claimant’s objection, the Panel set a date for the re-examination and further teleconference.
The claimant advised she could not attend the medical examination due to a subsequent injury and a further timetable was set.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form is dated 20 January 2020[5]. She describes in it her injuries as follows:
“Small cuts to my face. Multiple hair-line fractures of the spine – tail bone to mid way shoulder blades. Swollen tube from kidney to bladder explains pain on left side at accident. Bruise and swelling to right knee.”
[5] Page 7 of the insurer’s bundle.
The claimant says she was taken to Gilgandra and Dubbo Hospitals and that their records were sent to her general practitioner (GP) in Queensland.
The claimant also disclosed major abdominal surgery on 27 November 2019 and that she was due to return to work on 10 January 2020.
Pre-accident records
General practitioner records from Stellar Medical commence with an attendance on 2 August 2007 for headache, nausea and thoracic back pain and an X-ray was requested.
There are sporadic attendances in 2008 and 2010 and then a gap in attendances until 22 January 2016 when the claimant attended for headaches and stress. There were generalised complaints of joint pains and on 22 November 2016, neck pain at the right side of the neck and in both hips and on 2 December 2016 complaints of pain in the hips and knees.
A CT scan of the cervical spine was done on 29 November 2016[6] showing early degenerative lipping at C4/5-C 6/7 with early narrowing of the C6/7disc space but no disc protrusions, neural compromise or exiting nerve root compression.
[6] Page 65 of the insurer’s bundle.
A Centrelink medical certificate of unfitness for work was provided on 29 March 2017 with the primary complaint of anxiety and depression and arthritis of the spine and knees as the second condition.
In March and April 2017, the claimant attended for neck, knee and lower back complaints. Radiology was requested and medication prescribed. On 28 August 2017 the entry records arthritis in the hips, right knee and hands.
On 15 August 2018 is a record of a “history of chronic pain, worse hip pain for 2 days, not sleeping well due to pain.” Celebrex was prescribed. On 6 September 2018 there is a note of “pain in both hips joints (worse on the left) and pain radiating to the thigh and back.” Radiology was requested. The report[7] of the X-ray was of normal hips and sacroiliac joints and the ultrasound of the left hip suggested tendinopathy and trochanteric bursitis. On 29 September 2018 the diagnosis of trochanteric bursitis is recorded, and more radiology was requested. The report of this indicates a corticosteroid and anaesthetic was injected into the left hip.
[7] Page 74 of the insurer’s bundle.
On 7 February 2019 the claimant had a duplex doppler scan of the right lower limb due to calf pain and to exclude a deep vein thrombosis.
Records from Dr Ejembi’s medical practice (Ripley Medical and Skin Clinic) have been produced. These commence in September 2019 after the claimant relocated to Queensland. The claimant was depressed and anxious and having trouble sleeping.
On 3 December 2019 the claimant complained of dizziness and pain in the right shoulder since abdominal surgery with no aggravating or relieving factors. She denied pain in other joints. She was prescribed Endone. Ms Utteridge was seen on 5 December and was slightly improved but still feeling dizzy.
Accident-related treating medical records and reports
The ambulance report (from accident scene to Gilgandra) confirms the claimant complained of lower back pain and abdominal pain, but no neck pain and she was not knocked unconscious.[8] The subsequent ambulance report (for the trip from Gilgandra to Dubbo) noted headache and slight central neck pain.[9]
[8] Page 44 of the claimant’s bundle.
[9] Page 51 of the claimant’s bundle.
A CT of the chest, abdomen and pelvis undertaken at Dubbo on 17 December 2019[10] was normal with no obvious fracture of the sternal body or ribs. It then says:
“The lumbar spine aligns normally.
There is subtle cortical buckling of the S3 fragment suspicious for a sacral fracture.
There is also endplate wedging of T8 suspicious for a T8 endplate fracture.”
[10] Page 56 of the claimant’s bundle.
The Dubbo hospital X-ray of 18 December 2019[11] reported:
“… subtle endplate wedging of T8 with loss in height of up to 10%. No other wedging is seen. There is subtle anterior buckling of the S3 cortex also appears fairly stable and undisplaced. The areas are stable. No new abnormality. No new fractures.”
[11] Page 56 of the claimant’s bundle.
The claimant was admitted, to be reviewed by the orthopaedics team in the morning but with spinal precautions overnight. The next day the progress note reads “Patient settled overnight, nil further complaints of pain.”
The orthopaedic review noted that the claimant’s mid thoracic spine and sacrum pain correlates with the CT scan. The plan was for an “erect x-ray”. The X-ray was reviewed by the orthopaedic registrar which noted the fracture was stable with minimal loss of height and the orthopaedic team for happy for the claimant to be discharged.
There is a note at page 519 in the claimant’s bundle within the hospital notes that the accident occurred at 95kmph.
Ms Utteridge attended her GP after the accident on 24 December 2019 complaining of multiple bruises, an impact to her face, low back and abdominal symptoms. On 6 January 2020 the claimant was still mild-moderately tender over the thoracic region with mild painful limitation of movement. Further complaints were made on 10 January 2020 and the claimant was concerned about returning to work with one child who could be violent.
On 21 January 2020 the claimant had an x-ray at the request of Dr Ejembi[12] which reported:
“No compression fracture seen. Mid thoracic intervertebral disc spaces are reduced. The rest of the disc spaces are preserved.
Sacrococcygeal vertebrae appear normal in contour and alignment. No evidence of fracture or dislocation seen.”
[12] Page 185 of the claimant’s bundle.
On 17 February 2020, Dr Ejembi records the claimant had ongoing back pain which had worsened after she returned to work. Ms Utteridge was referred for physiotherapy. The first physiotherapy session occurred on 17 December 2020. The claimant reported pain in the middle of the back (resolving overall) and lumbosacral spine, and she referred to “chronic feet issues with pain all around and feels hot and swollen”.
On 21 February 2020 her back was “still playing up” and working was making it worse.
On 2 April 2020 the claimant complained of headache and neck pain flaring up and that she had long standing headaches.
On 7 July 2020 the claimant saw Dr Ejembi with concerns about back pain with some tingling sensation in her feet particularly at the end of a day’s work.
Physiotherapy was advised in December 2020 and the report was considered with Dr Ejembi on 15 January 2021. The report is dated 7 January 2021. The claimant had been fearful of moving but after five sessions there was “a slow but steady improvement in her range of motion.” The only complaints and treatment provided was to the thoracic and lumbar spine.
On 15 February 2021 the claimant attended with bilateral hip pain for several months. She referred to a previous injection which had helped. She also complained of persistent neck pain on turning her neck and there was mild tenderness but no limitation of movement.
The claimant had an X-ray and ultrasound of both her hips on 10 March 2021[13] and the result noted mild degeneration in the left hip and “the lower lumbar spine, sacrum and [sacroiliac joints] are normal.” On 12 March 2021 the claimant was diagnosed with bilateral trochanteric bursitis and on 24 March 2021 she had an injection into the joint. This was causing issues on 16 June 2021 when the claimant attended for a flare up.
[13] Page 197 of the claimant’s bundle.
On 14 July 2021 she complained of worsening headache and back pain.
A CT scan of the cervical spine was done on 27 July 2021[14] and the report concluded “mild facet arthropathy right more than left. No significant nerve root compression.”
[14] Page 23 of the insurer’s bundle.
On 19 October 2021 the claimant attended with tailbone pain for two weeks with no known aggravating or relieving factors. It was not radiating pain, and the claimant denied trauma.
On 11 March 2022 the claimant attended with worsening coccyx pain and radiology was requested. The CT scan reports:[15]
“Sacral and coccygeal vertebral segments are normal in contour, alignment and density. No evidence of fracture or disclocation seen. Coccyx appears anteriorly angulated-positional. Both sacroiliac joints are congruent with mild degenerative changes.”
[15] Page 217 of the claimant’s bundle.
On 28 March 2022 the results were discussed, and the claimant was provided with Tramadol. On 14 April 2022 her lower back pain was worsening with standing or sitting. She was tender around C6/7 and the paraspinal lumbar region and her right hip was painful. There was no abnormality in either knee detected.
Dr Zeller, orthopaedic surgeon has produced his records and it appears the claimant was referred to him by Dr Ejembi on 6 May 2022 for opinion and management of persisting back pain since the car accident.[16]
[16] Page 22 of the insurer’s bundle.
The claimant completed a pain scale suggesting back pain of about 9 out of 10 and left leg pain at about 4 out of 10. A pain diagram shaded the central part of the lower neck, the central part of the thoracic spine between the shoulder blades and the lower back/sacrum just at the beginning of the buttocks. The claimant also indicated numbness, pins and needles in the front of the left mid-thigh, left foot and the “back of leg / whole leg (left) with numbness in the right foot and left and right fingers”.
The claimant first saw Dr Zeller on 9 August 2022. His report to Dr Ejembi[17] records that before the accident the claimant had “episodic tailbone pain” but no left leg symptoms. He refers to a 24 March 2022 CT scan which “does not reveal any abnormalities.” He noted no neurological signs and requested an MRI of the lower back, sacrum and coccyx as well as referral to a neurologist to investigate the left leg symptoms, pain management specialist for injections around the coccyx and physiotherapist for cervical and thoracic pain.
[17] Page 28 of the insurer’s bundle.
The MRI of the spine dated 6 September 2022[18] revealed small probably haemangiomas in L1, S1 and S3 vertebral segment. There was no high-grade neuro-compressive canal or foraminal stenosis. There were no insufficiency fractures or sacroiliitis reported.
[18] Page 228 of the claimant’s bundle.
Dr Zeller reported to Dr Ejembi on 21 September 2022 that there was no abnormality shown on the MRI and no reason to investigate her further and “no indication for surgical intervention”.
Medico-legal reports
The insurer obtained a report from Dr Burke, occupational physician on 27 September 2022.[19]
[19] Page 11 of the insurer’s bundle.
He has a record of the accident which includes a history of the truck tipping but that it remained upright and stopped.
The claimant said she saw Dr Ejembi on 24 December 2019 and had physiotherapy for her interscapular pain and lower back pain and was later referred to Dr Zeller. Dr Burke noted the other radiology that had been performed which indicated no significant abnormalities.
The claimant reported a consistent work history including a return to part time work in March 2020, full time duties after a few months and then the claimant left her child services role to work in a service station.
The claimant reported pain in her coccyx brought on by sitting or prolonged standing and working. She also reported continued interscapular pain. She said she takes Tramadol most days of the week, Somac and Seretide.
Dr Burke documents the claimant’s activities which include cleaning (not all of it), washing, shopping but no gardening or lawnmowing. In her spare time, she helps care for her three-year-old grandchild.
Dr Burke has a pre-accident history based on clinical records from Dr Crowley of anxiety, depression, arthritis in the knees, hips and lower back, chronic neck pain and headache.
The doctor examined the claimant recording:
(a) full range of motion in the shoulders, elbows, hands and fingers;
(b) normal neurological examination in the upper limbs;
(c) tenderness over the coccyx, and
(d) full range of motion in the lumbar spine, thoracic and cervical spine.
He noted the radiological reports indicated possible fractures and said, “it would be useful for these images to be reviewed by a consultant radiologist.”
He found all injuries had recovered and there was no impairment.
Dr Dias, occupational physician provided a report to the claimant’s solicitors dated 20 March 2023.
He took a very detailed history of the claimant’s pre-accident work history and then says the claimant “did not have any previous injuries or known pre-existing conditions affecting her thoracic spine, lumbar spine, cervical spine, knees or face / head” before the accident. He says, “she recalls that she had been pain free and asymptomatic in all of these regions prior to the subject accident.”
He has a history of the left tyre blowing at the same time as the claimant unbuckled her seatbelt to reach into the cabin of the truck. He says “As [the claimant] was unharnessed in the truck, she recalls that she was thrown around the front passenger area of the cabin, landing heavily on the floor and sustaining cuts to her forehead and bridge of her nose …”
He says at page 6 of his report that the Dubbo Base Hospital CT scan showed a subtle end plate wedge fracture of T8, and a subtle anterior buckling of the S3 vertebral cortex.
Dr Dias has a history of continuing pain, stiffness and discomfort in her thoracic and lumbosacral spine and right knee. He says the claimant has had physiotherapy, gym exercises, home exercises, analgesia and a back brace. She was having no current treatment. She has stopped taking Tramadol and only takes over the counter pain relieving medication.
The claimant was examined by video link and the deficiencies of that form of examination were noted. She had a full range of cervical spine motion and told Dr Dias of no neurological issues in the upper limbs. He also noted “she was tender to palpation” in the thoracic spine although this is difficult to understand as it was a telehealth appointment. There was some dysmetria, but Ms Utteridge made no complaint of motor or sensory symptoms in the thoracic area. Dr Dias records the claimant was tender to palpation from L3 to the coccyx. There was dysmetria of lumbar spine motion, but no neurological signs complained of.
Dr Dias diagnosed:
(a) chronic non-specific thoracic spine pain, stiffness and discomfort, secondary to an acute T8 endplate vertebral body fracture with 10% loss of vertebral body height;
(b) chronic lumbosacral spine pain, stiffness and discomfort, secondary to an acute subtle S3 vertebral cortex buckle fracture;
(c) chronic right knee patellofemoral dysfunction secondary to an acute impaction soft tissue injury, and
(d) multiple lacerations to her face and forehead which have healed without significant residual scarring.
In a separate report he assessed WPI at 14% (5% for the thoracic spine and 5% for the lumbar spine) and 4% for the knee using the range of motion method.
RE-EXAMINATION FINDINGS
The claimant attended a re-examination with Medical Assessor Gorman on 11 November 2024 in his rooms at Tweed Heads. She attended alone.
History provided by Ms Utteridge
Pre-accident medical history and relevant personal details
Ms Utteridge is 51 years of age. She is right-handed lady and drives a truck for a cement company. She has five children ranging in age from 18 years to 31 years and lives with her son and his fiancée.
She is a non-smoker and only has alcohol occasionally.
She has a history of asthma for which she intermittently takes puffers. She has no allergies.
History of the motor accident
Ms Utteridge was the passenger in a truck doing deliveries. She and the driver had just left a service station when a tyre blew, and they went off to the left hand side of the road through bush for some distance before coming to a stop. She said she was thrown around inside the cabin because she had undone her seatbelt to retrieve something from the cabin behind where she was sitting.
Ambulance attended the scene, and she was taken to Gilgandra Hospital and then Dubbo Hospital. She reports she had pain over the abdomen, her face and mid and lower back.
She was discharged the following morning. She reported being in significant pain in her back and having trouble sitting on the way home from Dubbo to the North Coast.
History of symptoms and treatment following the motor accident
Ms Utteridge said from the time of the accident she found it uncomfortable sitting and had to shift onto her left or right buttock to avoid pain on her tailbone. It was painful every time she sat on a chair.
For the first year she said she had trouble showering.
She described interscapular pain.
History of any relevant injuries or conditions sustained since the motor accident
She sustained an injury to her lower left leg while at work in the week of 14 October 2024. She was on a job site where her left leg became impacted by concrete mesh which had been moved out of place by a co-worker. She sustained a wound to her left shin, lacerations, bruising and swelling up to her left ankle. She had a X-Ray which was normal. She took anti-inflammatory medication and painkillers. The wound was dressed by her GP. The lacerations and pain had settled by the time of this examination.
She denied any further injury to her spine in this incident.
Current state
Current symptoms
Ms Utteridge has pain sitting and has to shift from one buttock to the other. She needs to take the weight off. This was observed throughout the 45 minute consultation by Medical Assessor Gorman.
Ms Utteridge complains of pain between her shoulders that is interscapular pain.
She also has pain when walking inferior and lateral to her right patella. She says it is intermittent and there is occasional swelling.
She feels that she is not as strong now although she accepts she can and does work full-time as a truck driver.
She has to do the cooking, shopping and cleaning at home but she says she “does less” than before.
Current and proposed treatment
Ms Utteridge took Tramadol intermittently in the early years, for her pain but this has ceased.
While she had some physiotherapy which was helpful, she has not engaged in an exercise based rehabilitation program for her back or her knee and she he has not had any injections into her back or knee.
Clinical Presentation
General presentation
On examination, Ms Utteridge was a well-looking woman in discomfort but no obvious distress.
Her height was measured at 165cm and her weight 72kg.
Thoracic spine
Examination of the thoracic spine demonstrated it to be normally aligned.
She was tender over the T8 thoracic vertebrae.
Respiratory excursion was normal.
Movement of her thoracic spine was performed, and rotation of the thoracic spine was normal to the right and left. Flexion and extension were also normal. There was therefore no dysmetria.
No guarding was observed, and Ms Utteridge made no complaint of any other symptoms that could be interpreted as non-verifiable radicular symptoms.
No signs of radiculopathy were found in the upper limbs on neurological examination.
Lumbar spine and sacrum
Ms Utteridge was tender over the sacrum. She also indicated pain over the upper lumbar spine around L1/L2.
In terms of range of motion, flexion was to the ankles and therefore normal. Extension was also normal. Lateral flexion was normal and unrestricted on both sides.
There was therefore no evidence of dysmetria and not muscle guarding evident in the lumbar spine. Ms Utteridge did not make any complaint of radiating pain or symptoms that could be interpreted as non-verifiable radicular symptoms in particular she did not complain of symptoms of left leg pain which Dr Zeller records in August and September 2022.
The lower limbs were neurologically intact and there were no signs of radiculopathy.
Lower extremities
Examination of the right lower extremity demonstrated normally aligned knees.
Quadriceps circumference and gastrocnemius circumference were equal on the right and left.
The range of motion in the knees was normal from 0°-140°. Both knees were stable in the coronal and sagittal planes.
There was audible and palpable patellofemoral crepitus.
Comments on consistency
Ms Utteridge was co-operative and pleasant throughout the assessment. She was consistent in her history and her symptoms are consistent with the radiology, the diagnoses and her recorded complaints.
CONSIDERATION OF THE ISSUES
Diagnosis and causation
Ms Utteridge was a passenger in a truck involved in an accident where a tyre blew out and the driver of the truck lost control and the truck drove off the road into the bush before coming to a halt. The claimant was unrestrained and says she was thrown around the cabin as a result. The Panel notes the suggestion that the accident occurred at over 90kmph.
The Medical Assessors are of the view that the mechanism of this accident could have resulted in the claimant sustaining the knee and spine injuries she says she received in the accident.
Knee injury
The Panel notes that there is no issue with causation of the claimant’s knee injury, or the diagnosis and impairment assessment arrived at by Medical Assessor Kuru.
Having considered the written documentation and the examination findings of Medical Assessor Gorman, the Panel considers the insurer’s concession appropriate.
Spine injury
A CT scan from 17 December 2019 was viewed and demonstrated a possible compression fracture of T8 and a buckle fracture of the S3 segment.
Medical Assessor Kuru obtained access to the hospital radiology and considered that the CT scan compression fracture of T8 and the buckle fracture of S3 were old and not acute fractures. Medical Assessor Kuru refers only to the CT scan and does not refer to the X-ray of the next day or of the subsequent radiology.
The Medical Assessors note that the standing X-ray performed the following day showed wedging of the thoracic spine at T8 and buckling of the sacrum at segment 3. There is no evidence of any displacement of either.
The Panel is satisfied, in the absence of any expert radiological evidence reviewing all of the films and scans, that there is evidence of a thoracic spine compression fracture and a buckle fracture at S3 and that as these correlate to the claimant’s complaints they were caused by the accident.
T8 Compression fracture
It is the clinical judgment of the medical members of the Panel that the report of the imaging from 17 and 18 December 2019 when considered together is that there was mild wedging of the T8 vertebral body which may be representative of fracture. A 10% loss of height due to the wedging or compression was noted.
The Panel notes this corresponded to her interscapular pain complained of by Ms Utteridge after the accident. The Panel is satisfied that the claimant sustained an injury to the thoracic spine in the accident.
Fracture of S3 vertebral cortex buckle fracture
From the time of the accident, Ms Utteridge has had pain which has been noted by her doctors as lower back pain, over the sacrum and in the area of the coccyx. The Panel is satisfied that the claimant did sustain an injury to the lower part of her back and pelvis in this accident.
IMPAIRMENT ASSESSMENT
Right knee
Ms Utteridge has chronic right knee patellofemoral dysfunction secondary to acute impaction injury. The right knee is assessed according to AMA 4 Guides, page 3/83, Table 62 (footnote).
Ms Utteridge has patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on X-rays and gives a history of her knee being hit in the truck as she was thrown around. The assessment of 2% WPI which the parties have agreed upon is appropriate.
Spinal impairment assessment provisions
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Clause 6.111 of the Guidelines provides that, “only the diagnosis-related estimate (DRE) method must be used for evaluating impairment of the spine, as modified by … the Guidelines.”
Chapter 3 section 3.3 of the Guides uses the term injury model for the DRE method which as per cl 6.112 relies on:
(a) evidence of neurological deficits e.g. radicular symptoms vs signs of radiculopathy, and
(b) structural inclusion such as fractures and dislocations.
Clause 6.113 of the Guidelines requires the assessment to be done “at the time the injured person is examined” and therefore surgery and its effects must be taken into account. See also cl 6.20 of the Guidelines.
While the AMA 4 Guides use the terms cervicothoracic, thoracolumbar and lumbosacral, the Guidelines say identify (cl 6.115) 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 diagnostic related categories, and a number of indicia provided (see Table 6.7) to guide Medical Assessors and examiners in choosing the correct category. The first is DRE category I which is selected if there are symptoms which may include pain.
A DRE II category would be awarded on the basis of structural inclusions if there was:
(a) a vertebral body compression of less than 25%;
(b) a healed and stable fracture of a posterior element with no dislocation or radiculopathy or
(c) a transverse or spinous process fracture with displacement of a fragment which has healed and is stable.
A DRE category II assessment would be satisfied if there was
(d) spinal pain with guarding or
(e) non-uniform range of motion – dysmetria or
(f) non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
A DRE III requires 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 the definitions of clinical findings in Table 6.8);
(b) positive sciatic nerve root tension signs (see Table 6.8);
(c) muscle atrophy and/or decreased limb circumference (see Table 6.8);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There are DRE category III impairments based on structural inclusions where for example there is a 25-50% vertebral body compression.
Sacrum injury impairment provisions
As has been explained above, there are three regions of the spine identified in the AMA 4 Guides, cervicothoracic, thoracolumbar and lumbosacral, however cl 6.115 adopts the terminology cervical, thoracic and lumbar regions respective.
A question arises whether the assessment of impairment following a fracture of the sacrum should be included as part of the “lumbosacral” spine assessment or whether it should be separately assessed outside the lumbar (L1-L5) region.
The Medical Assessors note that the sacrum is made up of five separate bones which fuse at some time before the age of 18. The sacrum is anatomically part of the spine, but it is also part of the pelvis as the ilium (the large broad bone forming the upper part of each half of the pelvis) is connected to the sacrum at the sacroiliac joint.
Clause 6.154 of the Guidelines provides that “Pelvic fractures must be assessed using section 3.4 (page 131, AMA4 Guides)”.
Section 3.4 lists as one of the pelvic fractures that can be assessed, the “sacrum”.
The combination of cl 6.154 of the Guidelines and the listing of “sacrum” in s 3.4 of the AMA 4 Guides as a pelvic fracture satisfies the Panel that the claimant’s S3 buckle fracture is to be assessed as part of the pelvis and is not to be considered as part of the lumbar spine and therefore not to be assessed in accordance with the DRE options listed in table 6.7.
Section 3.4 distinguishes between the following types of fractures:
(a) fractures that heal with or without displacement, and
(b) fractures that heal with or without residual signs
Impairments are assessed as follows:
(a) 0% is awarded if fractures are healed without displacement OR residual signs;
(b) 5% WPI is permitted if fractures are healed with displacement AND without residual signs, and
(c) 10% WPI is allowed if fractures are healed with displacement, deformity AND residual signs.
What is the claimant’s thoracic spine impairment?
The CT images from Dubbo on 17 December 2019 report “endplate wedging of T8 suspicious for a T8 endplate fracture” and the X-ray from Dubbo dated 18 December 2019 confirmed mild wedging of the T8 vertebral body with a 10% loss of height due to the compression.
A CT scan done at the request of Dr Ejembi on 21 January 2020 reported no evidence of a compression fracture in the thoracic spine although disc spaces were reduced at the mid thoracic level.
The medical members of the Panel are of the view that the contemporaneous scans confirm a mild compression or wedge type fracture with 10 compression.
In accordance with Table 6.7 of the Guidelines this compression fracture being less than 25% attracts a DRE II impairment which equates to a 5% WPI.
What is the claimant’s sacral impairment?
Ms Utteridge complained of pain over the sacrum at hospital and of lower back pain to her GP in December 2019. In February 2020 the claimant reported her back pain had worsened when she returned to work. On 19 October 2021 the claimant reported tailbone pain and worsening coccyx pain on 11 March 2022. Her back pain continued, and she was referred to Dr Zeller.
The CT scan from Dubbo reported subtle cortical buckling of the S3 fragment and a fracture was suspected. The X-ray from 18 December 2019 showed this buckling of the S3 cortex was fairly stable and undisplaced.
The subsequent X-ray on 21 January 2020 reported normal vertebrae in the sacrum and coccyx with no evidence of fracture. CT scanning on 11 March 2022 and an MRI on 6 September 2022 report no evidence of sacral fractures.
Whether the S3 fracture reported in 2019 after the accident was caused by the accident or was pre-existing, the subsequent radiology supports a finding that it has healed and there is no displacement.
Section 3.4 provides as follows (emphasis is reproduced from the Guides):
“1. healed fracture without displacement or residual sign(s) – 0%;
2. healed fracture with displacement and without residual sign(s) involving (f) sacrum – 5%, and
3. healed fracture(s) with displacement, deformity and residual sign(s) involving (f) sacrum into sacroiliac joint 10%”
Ms Utteridge had a displaced fracture (buckle fracture) of the sacrum at level 3 which has healed without displacement. She has signs (tenderness) over the region. None of the radiology now shows displacement therefore (2) and (3) above cannot apply because they are dependent on there being displacement.
Category 1 should, in the opinion of the Panel, be interpreted as “healed fracture without displacement or headed fracture without residual signs.” As Ms Utteridge has a healed fracture without displacement, she comes within the first alternative even though she does have residual signs (ongoing pain). She must therefore be assessed as 0%. The Panel notes that cl 6.38 provides that “… each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.” While the Panel has found a 0% impairment, this does not mean the injury did not occur or that the claimant is not experiencing symptoms, it just means that the injury and the current symptoms do not attract an impairment percentage under the impairment evaluation system.
Does the claimant have a lumbar spine impairment?
The Panel has considered whether the claimant also has a lumbar spine impairment related to, for example a soft tissue or musculo-skeletal injury to the lower back caused by the accident noting the records refer to back and lower back from time to time.
Ms Utteridge has pain in the lower back (DRE I – 0%) but on examination by Medical Assessor Gorman, no dysmetria, guarding or non-verifiable radicular symptoms or radiology therefore she does not qualify for a DRE II or III lumbar spine impairment.
CONCLUSION – PERMANENT IMPAIRMENT
The Panel is satisfied that the claimant has an impairment of 7% made up of the following:
(a) right knee 2%;
(b) thoracic spine 5%, and
(c) sacrum 0%.
The Panel has come to the same conclusion as Medical Assessor Kuru (that the claimant does not have a WPI of greater than 10%). The Panel notes Medical Assessor Kuru found 2% and included that figure in his certificate. The Panel is therefore of the view that we must revoke his certificate and issue a fresh certificate.
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