Vassallo v AAI Limited t/as GIO
[2022] NSWPICMP 517
•15 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Vassallo v AAI Limited t/as GIO [2022] NSWPICMP 517 |
| CLAIMANT: | Sylvia Vassallo |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Mohamed Assem |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 15 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about whole person impairment; review of Assessor Home’s assessment; claimant injured in August 2018 and is now 90 years of age; claimant fell in bus and says she injured her neck, lower back and left shoulder; gap of 11 months in complaints of neck pain and pre-existing lower back condition; shoulder impairment conceded but issue as to whether a deduction should be made under cl 6.51 or 6.31 of the Motor Accident Guidelines; Held – Panel not satisfied claimant injured her neck in the accident due to her history of a delay in onset of symptoms; Panel satisfied claimant injured her back but 0% impairment; shoulder impairment was 13% and Panel determined no deduction on basis of contralateral uninjured right shoulder because right shoulder injured in intervening accident; no deduction for pre-existing impairment because no objective evidence of impairment; claimant’s impairment is greater than 10%. |
| DETERMINATIONS MADE: | Revised and re-issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Home dated 6 April 2022. 2. Certifies that the degree of Sylvia Vassalo’s permanent impairment resulting from the injuries caused by the motor accident on 16 August 2018 is greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
introduction
On 16 August 2018 Mrs Sylvia Vassallo was injured when she fell inside a bus as it stopped suddenly.
Mrs Vassallo made a claim for statutory benefits against GIO, the third-party insurer of the bus. GIO determined she had minor injuries and terminated her statutory benefit payments 26 weeks after the accident. Mrs Vassallo challenged that finding and referred the medical dispute to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority of New South Wales (SIRA). Medical Assessor Home determined on 28 May 2019 that Mrs Vassallo’s left shoulder injury was not a minor injury and, as a result, Mrs Vassallo’s statutory benefits recommenced.
In time, Mrs Vassallo made a claim for damages. As part of that claim, she sought damages for non-economic loss on the basis she has a whole person impairment (WPI) of more than 10%. GIO did not agree, and that medical dispute was referred to the Personal Injury Commission (the Commission)[1]. Medical Assessor Home determined on 6 April 2022 that Mrs Vassallo had a WPI of not greater than 10%. The claimant was dissatisfied with that result and lodged an application for review with the Commission.
[1] Due to the abolition of the DRS with the passing of the Personal Injury Commission Act 2020.
A delegate of the President of the Commission determined there was reasonable cause to suspect an error in the determination made by Medical Assessor Home and the President then convened this Panel.
LEGISLATIVE BACKGROUND
Mrs Vassallo’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, 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[2] 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.
[2] The current maximum as of October 2022 is $605,000.
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[3].
[3] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessments and the review of medical assessments[4].
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[5] Section 7.21. The current version of the Guidelines is Version 1 which is effective from April 2022.
Spinal impairment
Assessment of the spine required consideration of Chapter 3 of AMA4. Only the diagnostic related estimate method of assessment is allowed.
The spine is divided into three regions:
(a) the cervicothoracic;
(b) the thoracolumbar, and
(c) the lumbosacral.
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.
There are eight diagnostic related categories and a number of indicia provided. The first is DRE 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 relevant.
DRE II 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 (shooting pain, burning sensation, tingling), and
(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.
DRE III requires radiculopathy which is defined in cl 5.8 as:
“Radiculopathy means 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 when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Shoulder impairment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3 of the AMA4 Guides. The upper extremity is divided into regions, the shoulder, the elbow, the wrist and the hand.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a) flexion;
(b) extension;
(c) abduction;
(d) adduction;
(e) internal, and
(f) external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.
Assessment under Review
Medical Assessor Home examined the claimant on 31 March 2022 and issued his certificate on 6 April 2022. The claimant was then 89 years of age, was 155cm tall and weighed 60 kg.
He was asked to assess the following injuries:
(a) left shoulder – complete rupture of the supraspinatus tendon and subscapularis in the left shoulder;
(b) cervical spine – whiplash associated disorder of the cervical spine, and
(c) lumbar spine – musculoligamentous injury.
Medical Assessor Home took the following history from the claimant:
(a) Mrs Vassallo said she had no previous spinal complaints or shoulder complaints and Mrs Vassallo said she had a “relatively normal range of shoulder movement before the accident”;
(b) Mrs Vassallo worked as an employed carer until 1993 and now cares for her husband;
(c) she fell on a bus when the bus driver braked and that he moved forward before suddenly braking again. Mrs Vassallo said she fell backwards, striking her lower back and the back of her left shoulder. She got off the bus and went to a pre-arranged medical appointment;
(d) she had early symptoms of low back pain and the day after the accident while hanging washing she could not raise her left arm. The pain and restriction of movement has persisted, and
(e) she has seen her general practitioner (GP), had an ultrasound and five sessions of physiotherapy. She takes pain killers.
In terms of current symptoms, Mrs Vassallo says she has neck stiffness but not pain. She sometimes has pain at the top of her left shoulder, but most is “at the apex of her left shoulder”. She avoids heavier lifting. She said she has no hand numbness and only occasional intermittent low back pain felt in the midline. She has no referred pain in the lower limbs.
She receives assistance with meals from one of her sons and domestic assistance from one of her granddaughters.
On examination, Medical Assessor Home records:
(a) neck there were no signs of radiculopathy or non-verifiable radicular complaints;
(b) right shoulder movements (the shoulder not injured in the accident) were restricted and had diminished since he last examined the claimant;
(c) left shoulder movements were even more restricted than the right, and
(d) there was reduced range of motion in the lower back which was symmetrical and there were no signs of radiculopathy or non-verifiable radicular complaints.
Medical Assessor Home noted there was no complaint from the claimant of neck pain beyond a few weeks after the accident although the claimant complained of “general neck stiffness”. He considered there was insufficient evidence of a material injury to the cervical spine and considered it significant that a neck injury was not included in the claim form. He therefore found no neck impairment.
He did find there was a tear of the left rotator cuff superimposed on underlying degenerative changes. He was satisfied there was also a soft tissue injury to the lumbar spine with progressive symptoms.
In undertaking his assessment of shoulder impairment, Medical Assessor Home used the range of motion method to come to a figure of 21% upper extremity impairment in the injured left shoulder. However, he also measured the range of motion in the right shoulder, not injured in the bus accident, which attracted a 12% upper extremity impairment. Medical Assessor Home then subtracted 12% from 21% leaves a 9% upper extremity impairment which converts to 5% WPI.
In the lower back he assessed Mrs Vassallo as DRE Category II on the basis there was dysmetria but no muscle guarding or muscle spasm which attracts a finding of 5%.
Medical Assessor Home therefore found a total 10% WPI.
Submissions
Claimant’s submissions
The claimant lodged preliminary submissions in support of the application for review[6]. The focus of these submissions was on the claimant’s cervical spine injury.
[6] Page 1890 of the claimant’s bundle.
The claimant says at [10] that Dr Bodel had found an accident-related assessable impairment but that the Medical Assessor found the claimant’s cervical spine injury was not caused by the accident or that she had recovered from any early injury.
The claimant noted at [11 –14] that Medical Assessor Home said he had reviewed the claimant’s GP records but provided no summary or identified what aspects of the records he had considered. The claimant observed at [14] that Medical Assessor Home said, “there is no subsequent complaint of neck pain” and thought it was significant that a neck injury was not listed in the claim form. The claimant then lists at [17] a series of dates corresponding to complaints she made to her doctor of neck pain noting that some of these indicate severe pain and radicular symptoms including muscle spasm and dysmetria. The first of these is 16 July 2019, nearly a year after the accident.
The claimant argues at [18-24] that Medical Assessor Home did not properly address the issue of causation in that he did not ask himself “whether the subject accident dated 16 August 2018 had contributed to any pre-existing injury to the cervical spine”. The claimant says Medical Assessor Home considered the absence of a neck injury in the claim form as conclusive evidence which is impermissible when he should have considered the “contemporaneous complaints”.
In the further submissions[7] lodged in support of this review, the claimant argues that there are errors in the assessment of the left shoulder injury. The claimant notes at [3-4] an obvious error in the reasons in that the Medical Assessor has mistakenly referred to the claimant’s non-injured shoulder as the left side when there is no dispute it was the right side that was not injured in the bus accident.
[7] Page 1895 of the claimant’s bundle.
The claimant notes the method of assessment of impairment adopted by Medical Assessor Home commenced with his determination that the uninjured [right] shoulder should be measured and assumed to have the same range of motion that the injured left shoulder would have had, but for the accident. The claimant complains there are inadequate reasons for why the right shoulder measurements were used in this way.
The claimant says that cl 6.51 provides that a contralateral uninjured joint can be used as a baseline if it has less than average mobility but only if there is a reasonable expectation it would have had similar findings and the rationale must be explained.
The claimant says the right shoulder was injured, but not in the bus accident and therefore is not to be used as a baseline. She relies on her GP’s notes which document pre-accident complaints of right shoulder pain. The claimant suggests at [19-20] that the Medical Assessor appears to have assumed both shoulders would have degenerated at the same rate but notes the claimant was right-handed. The claimant also says at [20] that the claimant may have been favouring her right shoulder due to the injury in the accident to the left shoulder. The claimant then points to a history of right shoulder pain dating back to July and September 2016 and further complaints in June and November 2020 and February 2021 [28] and says at [35] that Mrs Vassallo had an impairment to her right shoulder before and after the accident.
The claimant repeats many of the arguments from the original submissions in respect of the claimant’s neck injury.
Insurer’s submissions[8]
[8] Document R1 at page 1 of the insurer’s bundle.
The insurer suggests at [12-15] that the claimant is a poor historian noting the history obtained by Medical Assessor Home from the claimant that she had no history of previous spinal complaints when her GP records confirm she did. The insurer also points to Dr Bodel having a relevant history of high blood pressure and diabetes with no prior or subsequent accident or injuries. The insurer again points to the GP notes which suggest several falls and injuries after the accident.
It does not appear that the insurer disputes the claimant sustained a low back and left shoulder injury in the accident and suggests the difference in assessments between
Dr Wallace, Dr Bodel and Medical Assessor Home is that Dr Wallace’s assessment was done 12 months after the other two and it is reasonable to assume the claimant’s injuries had further recovered or improved.
The insurer does dispute the claimant’s neck condition as related to any injury sustained in the accident noting a pre-accident history of cervical radiology and complaints in 2011, an absence of complaints in the GP notes until June 2019.
The insurer lists at [34] previous complaints of back pain dating to June 2011, notes the claimant complained of mild lower back pain on the day of the accident and says there is no mention of lower back pain in the GPs notes from October 2019 to July 2021 suggesting the claimant has recovered.
Panel deliberations
The Panel met on 28 July 2022 and issued a report to the parties on 2 August 2022. The Panel noted the disputes concerning the assessment of the claimant’s cervical spine injury (raised by the claimant) and the lumbar spine injury (raised by the insurer) and advised that both would need to be reassessed.
The Panel considered the claimant’s left shoulder injury and said:
“[7] … the claimant has taken issue with Assessor Home’s use of the claimant’s right shoulder as the baseline measure for impairment assessment of the left shoulder. The claimant appears to be arguing that although the right shoulder was NOT injured in the bus accident, it had been injured before and it was therefore not a normal shoulder and should not be used as a baseline.
[8] It is the Medical Assessors of the Panel’s preliminary view that, at the age of 87, the claimant’s range of motion before the accident would not have been in the ‘normal’ range of motion designated in the AMA4 Guides simply because, in the clinical experience of the Medical Assessors, range of motion diminishes with age. Therefore, it is the Panel’s preliminary view that the claimant’s left shoulder impairment whilst measured and calculated in accordance with the Guides need to be adjusted for the effects of the ageing process noting the claimant is now 90.
[9] The Panel would be assisted by any submissions from the parties (or their experts) as to whether an adjustment should be made to account for the claimant’s age and if so the degree of adjustment.”
The Panel also sought a copy of any available closed-circuit video of the accident from inside the bus so the Panel could better understand the mechanism of injury and the Panel advised the parties of the re-examination details.
Claimant’s response to the Panel
The claimant provided further submissions in response to the Panel’s request for submissions as to whether an adjustment should be made for the claimant’s age[9] and says:
(a) range of motion may diminish with age but there is no evidence this is true for all people [2];
(b) the right shoulder could have been used as a baseline if it had not been injured before the accident [3];
(c) by adjusting the impairment percentage for age, the Panel would be deducting an “assumed” or “estimated” impairment which is not permitted under the Guidelines [4] – [5];
(d) the Guidelines provide a specific method for evaluating pre-existing impairment at 6.31 -6.33 and there must be “objective evidence” of a pre-existing impairment before a deduction can be made for it [6] – [8], and
(e) for the Panel to adopt an arbitrary deduction based on assumed or estimated impairment would operate unfairly [9] – [11].
[9] The submissions are dated 4 August 2022 and are document [AD5] in the Commission’s electronic file.
Insurer’s response to the Panel
The insurer said there was no CCTV footage and responded with submissions[10] which say:
(a) the Medical Assessor had a history of no previous shoulder complaints and a “relatively normal range of motion [8];
(b) that the right shoulder had a fair but reduced range of motion from his earlier (2019) assessment [9];
(c) he noted “constitutional stiffness” on the non-injured side[11] which he could not explain from his review of the medical file or the history given [12], and
(d) the Medical Assessor clearly engaged with the issue of apportionment and it was appropriate for him to adopt the methodology he used comparing one shoulder to the other [14] – [17].
[10] Dated 25 August 2022 and document [AD21] in the Commission’s electronic file.
[11] At this point he has confused left and right but the left shoulder was injured in the accident, the right shoulder was not injured in the bus accident.
The insurer’s submissions do not engage with the issue the Panel raised, whether it was entitled to adjust the impairment assessment for the claimant’s age. The insurer does not take issue with the way Medical Assessor Home approached the issue of pre-existing impairment and therefore it would appear the insurer is encouraging the Panel to adopt the same approach.
REVIEW of the EVIDENCE
Claim form
The claimant’s application for statutory benefits was dated 29 August 2018. After giving a description of the accident she says she sustained “injury to low back and left shoulder and shock (I feel like crying in mornings”. The Panel notes this form was completed 13 days after the accident but does not mention a neck injury.
Treating medical evidence
On 16 May 2011 the claimant’s cervical spine was X-rayed with clinical details given of “neck pain, right greater than left” and the conclusion was “cervical spondylosis”.
The GP notes[12] being on 16 April 2006 (at page 287 of the bundle) and end on
[12] Dr Estrella Campbell of the Bondi Junction Medical Centre.
25 June 2021 (at page 46). There are over 1830 pages of notes in the documents from the GP. The Panel does not intend to summarise them all but provides a summary of the pertinent musculoskeletal matters:
(a) 2008 – issues with arthritis in her fingers and pain in her knees;
(b) 2009 – knees and back pain on and off, right wrist, chronic back pain, left shoulder painful on and off, no trauma[13];
[13] 22 October 2009.
(c) 2010 – low back pain which worsened, right foot pain, referral for acupuncture for back pain;
(d) 2011 – low back pain and hips, X-ray, chronic and radiating to legs, right sided sciatica severe[14], discussion of surgery, referral to neurosurgeon and Endone prescribed;
[14] 14 July 2011.
(e) 2012, small fall, sciatica almost gone, right pain gets numb and sore, neck pain, another fall, back pain and sciatica, paraesthesia in hands, sciatica;
(f) 2013 – fall in January on left side, fractured ribs, dizziness, back pain, new neck pain, left knee pain;
(g) 2014 – back pain, sciatica on and off, dizziness, worsening back pain, hurt left shoulder lifting a box, neck pain chronic getting worse[15], knee pains;
[15] 6 August 2014.
(h) 2015 – back pain, recurrent severe sciatica, physiotherapy, pain improved then worsened again, dizziness, disabled parking;
(i)
2016 – transient ulnar neuropraxia, worsening forgetfulness, 27 July pain right shoulder pulling heavy shopping trolley two days ago now all gone, then 28 July pain in right shoulder and neck not better note “mobility shoulder no abnormality detected”, 7 September painful right shoulder when lifting “reasonable range movement right shoulder but painful”.
14 and 15 September right shoulder, 26 September right shoulder pain for five weeks, 20 and 24 October right shoulder treatments helping, 7 and
14 November improving steadily;
(j) 2017 – right knee pain, lumbar spine and sciatica well controlled, dizziness, left ankle pain, left foot pain landed heavily getting off bus, fall backwards in the park twisted left ankle;
(k) 2018 – 25 July still getting back pain, 16 August fall in the bus “c/o low back pain mild”, 30 August, lower back pain and unable to lift left arm noticed three days ago when hanging the clothes, 12 September lower back and left arm pain;
(l) 2019 – left knee pain, 16 July paraesthesia both hands for few days has a neck pain, 26 August low back pain and continuing during September and October;
(m) 2020 – numbness in both hands for a few months no trauma, request for physio for left shoulder and left hand pain following fall in the bus, 14 May care plan left shoulder and left hand, 20 May, 10 June neck pain with radiculopathy, 2 September fell last night after losing her balance pain right wrist comminuted fracture distal radius, 27 October left shoulder and lower back disability parking form, 11 and 16 November neck and shoulder pain has returned, and
(n) 2021 – neck pain and physiotherapy for shoulder and neck, radiculopathy.
The Panel notes the claimant has had occasional complaints of neck pain before the accident and significant complaints of lower back pain and sciatica pre-accident.
Medico-legal evidence
The claimant obtained a medico-legal report from Dr Bodel dated 3 March 2020. He has a history of injuries to the left shoulder and lower part of her back (the Panel notes no mention of the neck).
Dr Bodel has a history of the left shoulder being the main complaint followed by intermittent back pain. The claimant had developed numbness radiating down her left arm to the hand. In the list of current complaints was “continuing pain at the base of the neck and over the top of the left shoulder”.
Dr Bodel noted wasting of the shoulder girdle on the left but not the right and restricted shoulder motion in both the right[16] and left[17] shoulders.
[16] Flexion 160, extension 40, abduction 160, adduction 40, internal rotation 70, external rotation 70.
[17] Flexion 90, extension 30, abduction 10, adduction 70, internal rotation 40, external rotation 40.
He found the claimant’s neck injury attracted a DRE II rating due to the presence of asymmetry of movement and guarding, that is a 5% WPI. He found a 17% UEI on the left and 4% on the right which he deducted leaving 13% UEI. He also found a median nerve disorder and loss for which he gave 10%. He made no deduction for any pre-existing impairment or used the right shoulder as a baseline measurement. The Panel notes there was no evidence of any nerve disorder during the course of the re-examination by Medical Assessor Stubbs.
The claimant attended an examination with Dr Wallace for the insurer and his report is dated 26 April 2021.
He has a history of the claimant complaining of left shoulder and neck pain to her GP on the day of the accident. The claimant reported no previous neck or left shoulder injury or episodes of pain.
Dr Wallace had a history of intermittent paraesthesia and numbness in the left hand with weakness, stiffness in the left shoulder in abduction and says “her previous lumbar spinal pain has resolved”.
Dr Wallace undertook an impairment assessment finding DRE category I (0% WPI) for the cervical spine and 22% UEI for the left shoulder[18] and 10% RUEI for her “uninjured right shoulder”[19] which he deducted to find 12% LUEI or 7% WPI for the left shoulder.
[18] Flexion 50, extension 40, abduction 50, adduction 0, internal rotation 40, external rotation 20. The Panel notes Dr Wallace has used incorrect names for the last four of the six planes of motion.
[19] Flexion 140, extension 40, abduction 160, adduction 30, Internal rotation 40, external rotation 40.
Other assessments
Medical Assessor Home examined the claimant on 16 May 2019 and issued his certificate in relation to “minor injury” on 28 May 2019.
He has a history of the claimant going to her GP immediately after the accident with low back pain then left shoulder pain the day after the accident. She returned on
30 August with problems lifting her left arm.
Mrs Vassallo said she had no history of spinal complaints or shoulder complaints before the accident.
There is no complaint of neck injury in this report. There is a report of “mild neck stiffness without pain” but she had recent symptoms of night time numbness in both hands. She also complained of intermittent lower back pain “for a few hours several days per week”.
He examined her cervical spine which displayed no guarding or spasm and symmetrical restriction of motion.
The examination of the right shoulder showed good but restricted range of motion[20] and significant restriction in the left[21].
[20] Flexion 160, extension 50, abduction 140, adduction 40, Internal rotation 60, external rotation 80.
[21] Flexion 80, extension 40, abduction 70, adduction 20, Internal rotation 45, external rotation 30.
There was restriction of movement in the lumbar spine and asymmetrical loss of flexion/extension.
He found the history of the onset of difficulties with raising her arm on the day after the accident was consistent with an acute rupture of the rotator cuff which was therefore a non-minor injury.
RE-EXAMINATION FINDINGS
Mrs Vassallo was originally scheduled for re-examination with both Medical Assessors Stubbs and Assem on 31 August 2022 however this did not proceed as the claimant fractured her hip and was hospitalised shortly before the examination. Mrs Vassallo was discharged from hospital in early November however an appointment with both Medical Assessors was not available until the New Year. Due to Mrs Vassallo’s age and her declining health, the Panel decided to proceed with a re-examination with Medical Assessor Stubbs only on 30 November 2022.
Mrs Vassallo attended the examination with her son Ron. He was able to find parking close by within range of Mrs Vassallo’s present walking distance.
History from the claimant
In August 2018 she was going shopping and she does not have a driving license she normally travels by bus taking her own wheeled trolley with her. The bus approached the bus stop and Mrs Vassallo along with other passengers rose from their seat in anticipation of getting off. The bus stopped very jerkily, and Mrs Vassallo lost her balance and fell backwards hurting her low back and left shoulder.
She was assisted by other passengers and eventually returned home. However, she had low back pain and of more concern to her, left shoulder pain and weakness. She attended her GP three days after the accident as she could not raise her left arm to hang clothes on the washing line. An ultrasound examination arranged by the GP revealed a full thickness rotator cuff tear and rupture of the long head biceps tendon. This was treated with physical therapy and a home exercise regime with TheraBand’s which Mrs Vassallo still uses. Mrs Vassallo’s left shoulder remains weak and she cannot lift her left arm above shoulder level.
Mrs Vassallo’s prior history of several years of episodes of fluctuating low back pain was put to her by Medical Assessor Stubbs and she agreed that her back was episodically troublesome, and she had sought attention for it again a few weeks before the bus accident. She complained of pain in the lower back after the accident but that it has fluctuated in intensity.
Mrs Vassallo also reported to Medical Assessor Stubbs that while she had neck pain, she agreed this did not come on for several months after the accident and the neck pain has mostly resolved now in any event.
The claimant said that before the accident she was in good health. She and her husband had lived in the same single-story house in the eastern suburbs for over 50 years and between them they managed all the necessary activities of daily living and Mrs Vassallo took paracetamol from time to time for the low back pain.
Before the accident, Mrs Vassallo had unrestricted use of both shoulders. It was her normal habit to travel independently by bus to do her shopping or to visit friends. She had not had problems with her left shoulder before the bus accident and temporary problems with her right before the accident. Her husband’s health was not as good as hers but between them they managed. She has two adult sons and several grandchildren.
Following the motor vehicle accident there have been two significant episodes of further ill-health as follows:
(a) about 18 months ago she had a fall when dressing. She suffered a fracture of her right wrist which required casting and she injured her right shoulder at the same time and that became painful, weak, and restricted in movement, like the left but not so bad. This made independent living more difficult, but she and her husband still managed. Mrs Vassallo was asked about other falls. She replied that she had prior falls when “rushing about” but none that caused any lasting injuries, and
(b) in mid-2022 she developed increasing episodic pain in her hip which became progressively disabling over a period of six weeks. She was admitted to the Prince of Wales Hospital on 23 August where investigations revealed an atraumatic displaced sub-capital fracture of her left hip. This was treated with a total hip replacement and Mrs Vassallo was discharged to her son’s home for further convalescence. Mr Vassallo was not able to manage by himself when she was in hospital and he was admitted to aged care due to dementia. Mrs Vassallo still requires assistance with her personal care and dressing but can move around independently. Her son’s home is small, and the present arrangements are temporary. Whether she will be able to return to our own home with visiting community care assistance or will need to move to an aged care facility is presently undecided.
Clinical examination as reported by Medical Assessor Stubbs
Mrs Vassallo is a bright, communicative lady fully able to speak for herself. She reports a considerable weight loss since the onset of hip pain and surgery and is struggling with physical activities that she once did easily. She chooses not to use a walking aid and can manage her personal care with assistance from her daughter-in-law or granddaughter. Her son’s home is small and not fitted with appropriate disability aids. She cannot travel independently now and does not expect to be able to do so in the future. She was fully cooperative in the clinical examination and gave a clear history without contradictions.
She agreed with the insurer’s assertions that there was a history of low back pain over several years and that her neck pain was delayed in presentation by 11 months from the date of the accident.
General examination – Mrs Vassallo was able to to walk around the room without assistance and rose from a chair and could get on and off the examination table by herself. She reported that the distance of a couple of hundred metres she needed to walk from where her son was able to find a carpark was about the limit of her present walking ability, but she managed by taking it slowly. Mrs Vassallo was examined without her shirt and spencer. She wears a maternity bra that does up at the front because of her shoulder complaints. Her son needed to assist her getting the shirt and spencer off as both were of the pullover variety. He similarly helped her dress at the end of the examination again due to her shoulder complaints.
She stands 152 cm tall and weighs about 50 kg on her estimation. Mrs Vassallo has sarcomalacia, a loss of muscle mass and general strength associated with ageing.
Cervical spine examination and assessment
The claimant has symptoms of stiffness but does not complain of pain in her neck. She can flex her neck fully forwards and backwards has equal range of motion for rotation and lateral flexion to about two thirds normal range symmetrically. There were no signs of guarding or spasm observed in the cervical spine and no non-verifiable radicular signs within the definition in the Guidelines. Neurological examination of the upper limbs was normal, the reflexes were brisk and symmetrical, there was no sensory loss, and motor power was five out of five with allowance for her sarcomalacia. Movements of the elbows, wrists, hands and fingers are normal and grip strength in the upper limbs is five out of five. There are therefore no signs of cervical radiculopathy within the definition in the Guidelines. Carpal tunnel compression test were negative indicating no median nerve injury.
Leaving aside any issue of causation, the claimant’s neck impairment would be categorised as DRE I and attract a WPI of 0%.
The Panel is however not satisfied that the claimant injured her neck in the accident. The claimant did not mention a neck injury in her claim form, did not complain about it to her GP for 11 months after the accident and she herself told Medical Assessor Stubbs that her neck pain came on 11 months after the accident. It is the clinical judgment of the medical members of the Panel that it is medically implausible that the effects of a neck injury would first appear 11 months after the accident. If the claimant did injure her neck in the accident, the medical members of the Panel are of the view the claimant would have complained of pain or symptoms earlier than she did and there would be some record of it in the GP notes and a referral for investigations or allied health services.
Lumbar spine examination and assessment
Mrs Vassallo complained of episodic pain in her lumbar spine, including during the course of the examination.
Mrs Vassallo has a good standing posture but does have a thoracic kyphosis and lumbar extension which is limited and restricted. Mrs Vassallo can flex forward bringing her fingertips to the ankle. The range of motion in flexion is greater than the range of motion in extension and therefore there is dysmetria. Mrs Vassallo can bend to each side reaching fingertips to her knees equal on the left and the right. She can tip toe walk a few steps and heel toe walk providing she had support from the examiner. Her gait is unsteady when doing this and unsteadiness is noticeably more pronounced if asked to repeat the movements with her eyes closed.
There were no signs of guarding or spasm observed in the lumbar spine.
Neurological examination of the lower limbs was normal, the reflexes were brisk and symmetrical, there was no sensory loss, and motor power was five out of five with allowance for the sarcomalacia.
The left total hip replacement result is excellent, the Trendelenburg sign is negative and the range of motion in the right equals the left.
The claimant does not have any of the five signs of radiculopathy in lumbosacral spine.
The overall impression following the examination is that Mrs Vassallo has a balanced spine compromised by loss of lumbar extension from either occult (subtle) vertebral age-related fractures or age-related spondylosis.
The Panel accepts the claimant injured her lower back in the accident. The mechanism of the accident, a fall backwards would have caused a jolt to the lower back and aggravated the degenerative state of her lumbar spine. The claimant complained soon after the accident of back pain. The Panel notes that the claimant has had previous episodes of lower back pain with “sciatica” before the accident but that these have been intermittent.
The Panel is satisfied that the claimant’s lumbar spine injury would be categorised as DRE II due to the presence of dysmetria. However, the Panel notes the extended history of back complaints in the notes including severe sciatica so severe the claimant sought a disability parking permit due to her limited mobility. The Panel considers this to be objective evidence of a pre-existing impairment and that Mrs Vassallo would have been categorised as having a DRE II before the accident. The findings on examination and the apparent absence of specific lumbar spine investigation following the accident satisfies and that a deduction for the pre-existing disease is necessary.
As the claimant’s current WPI is 5% and the Panel is of the view her pre-accident impairment would have been 5%, the Panel therefore finds that Mrs Vassallo has a 0% WPI for her lower back injury.
Right shoulder
Examination findings
Mrs Vassallo had general loss of proximal musculature about the shoulder girdles, rotator cuff and deltoid on both sides consistent with her sarcomalacia. The left shoulder is worse than the right.
Left Shoulder
Normal
Range of motion
Upper extremity impairment
Flexion [Fig 38]
180°
60°
8%
Extension [Fig 38]
50°
30°
1%
Abduction [Fig 41]
180°
50°
8%
Adduction [Fig 41]
50°
20°
2%
External rotation [Fig 44]
90°
60°
0%
Internal rotation [Fig 44]
90°
60°
2%
Total upper extremity impairment 21%
A goniometer was used to take measurements of three repeated movement of active range of motion with great consistency.
Active shoulder abduction and flexion power is only three out of five and the lift off test is positive. The Popeye sign from the left long head of biceps rupture is subtle but this reflects the general loss of muscle mass due to the claimant’s age.
Shoulder method of assessment
Clause 6.50 of the Guidelines provides that while the range of motion model is a suitable method of evaluating shoulder 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”. To prevent this, the Guidelines provide that range of motion is assessed as follows:
(a) a goniometer should be used;
(b) impairment should only be calculated using active range of motion measurements;
(c) if the Medical Assessor is concerned that the results of a measurement are unreliable, “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 (see cl 6.40 of these Guidelines), and
(e) if range of motion measurements cannot be used, the Medical Assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
In this matter, Medical Assessor Stubbs was of the view the claimant’s range of motion measurements were reliable. Mrs Vassallo was consistent, and co-operative and her efforts reflected in the examiner’s view a genuine best effort.
The total upper extremity impairment on the left shoulder amounts to 21%. This equates to 13% WPI as per table 3.
Should the right shoulder be used as a baseline measurement?
Both Mrs Vassallo’s shoulders demonstrated restricted range of motion and the right shoulder, which was not injured in the fall in the bus, had a significant impairment of function at the time of the re-examination by Medical Assessor Stubbs. Medical Assessor Home had deducted the impairment in the “uninjured” right shoulder from the left shoulder on the basis that, at the age of 87, the claimant would have had some pre-accident impairment in her right shoulder. The Panel notes that Dr Bodel (for the claimant) did the same thing.
Clause 6.51 provides for the use of a contralateral uninjured joint as a baseline if the uninjured joint has a less than average mobility and “only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury”. The baseline measurement of the allegedly uninjured shoulder is done on the same day of the assessment of the injured shoulder.
The claimant argues that the right shoulder was injured before the accident (in the mid to late 2016 incident and subsequent complaints recorded in the GP notes) and therefore cannot be used as a baseline measurement. The Panel notes the claimant had a fall in September 2020 when she fractured her right wrist (reported to the GP) which appears to be the same incident that she says caused injury to her right shoulder (reported to Medical Assessor Stubbs).
The table below records the claimant’s left and right medical assessment measurements and the Panel notes that there has been a significant deterioration in the claimant’s right shoulder range of motion between 2019 and 2022 which fits with the September 2020 unrelated fall which has caused a deterioration of the right shoulder function.
Home 2019
Left
Home
Mar 2022
Left
Panel
Oct 2022
Left
Home 2019
Right
Home Mar 2022
Right
Panel
Oct 2022
Right
Flexion
80
60
60
160
110
120
Extension
40
40
30
50
50
40
Abduction
70
60
50
140
90
70
Adduction
20
10
20
40
40
30
Internal Rotation
30
30
60
60
60
60
External Rotation
45
30
60
80
40
30
UEI
19
21
21
5
12
14
It is the clinical judgment of the medical members of the Panel that Mrs Vassallo’s right shoulder is not, at the time of its assessment a “normal” or uninjured shoulder and cannot be used as a baseline measurement. The Panel has no confidence that the claimant’s current right shoulder measurements would be similar to the pre-accident measurements in the left shoulder.
The Panel will not therefore make a deduction from the left shoulder impairment on the basis of any right shoulder impairment.
Can age be taken into account?
The Panel notes cl 6.9 of the Guidelines which says:
“Impairment is defined as an alteration to a person’s health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means” [emphasis added].
The underlined portion above is similar to a statement on page 1 of the AMA4 Guides although it talks about impairment as a “deviation from normal”.
On page 2 of the AMA4 Guides the authors recognise that what is normal can vary with age, gender and other factors and the example is given of comparing the visual capabilities of a 21 year old to a 75 year old. “An interpretation of normal that is too strict can result in an overestimation or underestimation of impairment”.
Mrs Vassallo’s left shoulder has been assessed by reference to what the normal range of motion is said to be in the Guidelines for example 180 degrees of flexion and 180 degrees of abduction.
The Panel sought submissions from the parties as to whether the Panel could make an adjustment of the UEI or WPI to take into account the claimant’s age. The insurer’s submissions did not address this other than to repeat its earlier submissions that Medical Assessor Home was entitled to do what he did by using the right shoulder as a baseline against which to measure the left shoulder.
The claimant provided detailed submissions that the Panel should not make any adjustment other than by considering cl 6.31 – 6.33 of the Guidelines.
The Panel is persuaded by the claimant’s submissions. While the AMA4 Guides and the Guidelines define impairment as a departure from normal and they provide graphs, figures, tables and instructions for assessment based on the departure from what is considered “normal” measurements, nowhere in the AMA4Guides or the Guidelines is there the provision to adjust the “normal” maximum range of motion.
To adjust the “normal” measurements would be estimating or assuming a pre-existing impairment due to the claimant’s age and in the Panel’s view this is not permissible.
Should there be a deduction for a pre-existing impairment?
The provisions in the Guidelines for pre-existing impairment are set out below:
“6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition…
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
There is no evidence put before the Panel of a pre-accident left shoulder impairment in the medico-legal reports. Dr Bodel approached the assessment of impairment task in the same way as Medical Assessor Home by using the right shoulder as the baseline measurement. Dr Wallace made no deduction at all.
The Panel’s review of the GP records notes two episodes of left shoulder pain following incidents in 2008 and 2014. These do not appear to have caused any long-term issues. There were about a dozen attendances in 2016 for what appears to be right shoulder complaints but none in 2017 or 2018 immediately before the fall in the bus. There is nothing in the GP’s notes to suggest any diagnosis of chronic pain in the left or right shoulder before the accident. The Panel has not been taken to any reports in the GP records to suggest a reduced range of motion in the left shoulder before the accident.
There is therefore no evidence of a pre-accident symptomatic condition in the left shoulder before the accident and no objective evidence of any pre-accident permanent impairment.
The Panel notes that the history given to Medical Assessor Stubbs was that before the accident the claimant was living independently caring for her husband and had no difficulties hanging out the clothes or pulling her shopping trolley (empty on the way to the shops and not empty on the way back). These two activities would require in the Panel’s view full or near full flexion and extension of the left shoulder which supports the Panel’s view of an absence of pre-existing impairment.
On that basis the Panel is satisfied that the claimant’s current upper extremity impairment is a reflection of the impairment resulting from the accident and that there can be no deduction from it under cl 6.31.
CONCLUSION
The Panel is satisfied that the claimant has a WPI of greater than 10% as a result of the motor accident on 16 August 2018 as follows:
· cervicothoracic spine – no injury caused, but if injured 0%
· lumbosacral spine – 5% less 5% pre-existing impairment 0%
· left shoulder – 21% upper extremity impairment 13%
As the Panel has come to a decision that is different to Medical Assessor Home’s, it follows that his certificate dated 6 April 2022 must be revoked.
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