Walkom v AAI Limited t/as GIO
[2024] NSWPICMP 122
•1 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Walkom v AAI Limited t/as GIO [2024] NSWPICMP 122 |
| CLAIMANT: | Denise Walkom |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Clive Kenna |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 1 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 15 June 2016 when she was a front seat passenger in a stationary vehicle which was struck from behind by another vehicle; dispute as to whether the degree of permanent impairment as a result of the injury caused by the accident is greater than 10%; Medical Assessor (MA) found that the injuries to the cervical spine, left shoulder and lower back were caused by the accident and assessed that these give rise to a combined whole person impairment (WPI) of 6%; 0% for the neck/cervical spine, 1% for the left shoulder and 5% for the lumbar spine; Panel was satisfied that the accident caused soft tissue injuries to the cervical spine, lumbar spine and left shoulder, but was not satisfied that the accident caused either a frank injury to the claimant’s right shoulder, or a secondary injury to the right shoulder from overuse of it because the claimant was sparing her left shoulder, which was injured in the accident; Held – Panel assessed WPI at 3% for the left shoulder and 0% for both the cervical spine and lumbosacral spine; degree of permanent impairment as a result of the injuries caused by the accident is not greater than 10%; certificate of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Sam Perla dated 2. The Review Panel certifies that the degree of permanent impairment of the claimant as a result of the following injuries caused by the accident on 15 June 2016 is not greater than 10%: (a) cervical spine – soft tissue injury; (b) left shoulder – soft tissue injury, and (c) lumbar spine – soft tissue injury. 3. The Review Panel certifies that the following injury to the claimant was not caused by the accident on 15 June 2016: (a) right shoulder. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Denise Walkom, suffered injuries in a motor accident on 15 June 2016 when she was a front seat passenger in a stationary motor vehicle which was struck from behind by another vehicle (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
GIO (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Sam Perla and is dated 24 November 2021. Medical Assessor Perla certified that the following injuries caused by the motor accident give rise to a permanent impairment of 6% and is not greater than 10%:
(a) cervical spine – soft tissue injury;
(b) left shoulder – soft tissue injury, and
(c) lumbar spine – soft tissue injury.
THE REVIEW
The application for review of the medical assessment to a Review Panel (the Panel) was made by the claimant on 27 December 2021.
On 4 April 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[3]
[3] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
On 6 July 2022, the claimant was examined by Medical Assessor Kenna.
THE ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Perla for assessment:
(a) cervical spine – whiplash injury with post-traumatic stiffness and with dysmetria;
(b) left sided facet arthralgia, shoulder brachialgia in the upper left limb with left trapezial muscle pain radiating to the index, middle and ring fingers and occipital headaches, soft tissue injury;
(c) left shoulder – rotator cuff tear and tendinosis with subacromial bursitis and aggravation of previously asymptomatic arthrosis, and
(d) lumbar spine – lower back strain with post-traumatic lumbar stiffness with dysmetria, lumbosacral facet arthralgia with radicular complaint, aggravation of pre-existing asymptomatic L4/5 and L5/S1 degenerative spondylolisthesis, soft tissue injury.
Medical Assessor Perla obtained a pre-accident medical history from the claimant and relevant personal details. He records that the claimant stated that she was now aged 74, left hand dominant and had been an aged pensioner, she thought, for some 10 years but that prior to that she recalled that she last worked as a security officer for 10 years up until 2002. The claimant stated that she takes medication for diabetes and gout, and that she underwent in the past a thyroidectomy, hysterectomy, and a right inguinal hernia repair. She also thought that some years ago she sustained a fracture to the right shoulder and was unsure of when, following a fall over her dog.
Medical Assessor Perla noted that the claimant recalled a previous motor accident in 1996, where she stated she was rear ended by a truck injuring her left knee and right elbow, which was the subject of a third party claim, and that ultimately she underwent a left total knee replacement, she thought, some 15 years ago, followed by a right knee total replacement, some four years ago.
Medical Assessor Perla also noted that the claimant thought that in 2001 she slipped over whilst shopping and injured her lower back and he understood that this was the subject of a personal injury claim. The claimant said that she has had ongoing lower back pain to some degree ever since, which was aggravated by the subject motor accident.
With regards to the history of the subject motor accident, the claimant informed Medical Assessor Perla that on 15 June 2016 she was a front seat passenger with her son driving in a Holden Caprice, wearing a seatbelt, on the Cumberland Highway in the Wentworthville area. She recalls that they were stationary at traffic lights, when suddenly her vehicle was rear ended by another car. She recalls that she was thrown forward and backwards in the cabin. She denied loss of consciousness and Medical Assessor Perla understood that she was able to exit the vehicle. Police and ambulance attended the scene of the accident, however the claimant said she was not transported to hospital but that her son was transported to hospital. She said that she was taken home by the tow truck driver and that at the time of the accident she was in shock.
In terms of history of symptoms and treatment following the motor accident, Medical Assessor Perla recorded that the claimant stated that the following day she became aware of pain involving her neck, left shoulder and lower back. She consulted her general practitioner, Dr Kuok, and was referred for an X-ray of the cervical spine and an ultrasound of the left shoulder on 21 June 2016 and the ultrasound of the shoulder reported calcification of the subscapular tendon, tendinosis, and a tear of the supraspinatus tendon.
The claimant recalled that she was provided with various analgesics and was referred for physiotherapy which she attended for some 12 months and she attended hydrotherapy for three months. Medical Assessor Perla noted that he understood that Dr Kuok referred her to Dr Brian Hsu, orthopaedic surgeon, in relation to her back and that the claimant stated that she was provided with a high dose of Lyrica which she stopped soon after and that she did not return to see Dr Hsu. She said that in the meantime, her general practitioner retired, and she is now under the care of Dr Liew.
Medical Assessor Perla noted that the claimant had another ultrasound of the left shoulder on 11 May 2017 which showed similar changes to the first one, and that Dr Kuok did refer her for a CT facet joint injection for the lower back in December 2017, and that she had another ultrasound of the left shoulder in April 2019 with similar results.
Medical Assessor Perla noted that the claimant stated that she began to experience the onset of right shoulder pain which she related to overuse. He noted that in November 2019, she was referred by Dr Kuok for an ultrasound and X-ray of the right shoulder which reported glenohumeral joint arthritis, rupture of the supraspinatus tendon and a partial with full thickness tear of the subscapularis. According to what the claimant told Medical Assessor Perla, she was not referred for any further specialist opinion.
The claimant underwent a CT scan of the lumbosacral spine in October 2017, which essentially showed degenerative changes, and she had an updated CT scan of the lumbar spine in September 2021 which again reported “marked facet join degenerative changes at L4/5 and L5/S1 with a disc protrusion at L4/5 and right sided foraminal stenosis”.
Medical Assessor Perla noted that the claimant’s treatment has primarily been conservative, apart from the facet joint injection. More recently she had commenced acupuncture and has had two sessions thus far.
The claimant denied any other relevant injuries or conditions sustained since the accident.
Medical Assessor Perla summarised the relevant radiological and medical imaging and other investigations with which he was provided and clinically examined the claimant.
In the opinion of Medical Assessor Perla, the claimant on the history provided, more than likely did sustain soft tissue injuries involving her neck, back and left shoulder as a result of the motor accident.
Medical Assessor Perla determined that the following injuries were caused by the accident:
(a) cervical spine – soft tissue injury;
(b) left shoulder – soft tissue injury, and
(c) lower back – soft tissue injury.
Medical Assessor Perla determined that the following injuries were not caused by the accident:
(a) cervical spine – whiplash injury with post-traumatic stiffness and with dysmetria;
(b) left sided facet arthralgia, shoulder brachialgia in the upper left limb with left trapezial muscle pain radiating to the index, middle and ring fingers and occipital headaches, soft tissue injury;
(c) left shoulder – rotator cuff tear and tendinosis with subacromial bursitis and aggravation of previously asymptomatic arthrosis, and
(d) lumbar spine – lower back strain with post-traumatic lumbar stiffness with dysmetria, lumbosacral facet arthralgia with radicular complaint, aggravation of pre-existing asymptomatic L4/5 and L5/S1 degenerative spondylolisthesis, soft tissue injury.
There were no radicular complaints found by Medical Assessor Perla on his clinical examination of the claimant.
Medical Assessor Perla determined that the following injuries caused by the accident give rise to a combined whole person impairment (WPI) of 6% as follows:
(a) neck/cervical spine – 0% with no pre-existing or subsequent causes;
(b) left shoulder – 1% with no pre-existing or subsequent causes, and
(c) lumbar spine – 5% with no pre-existing or subsequent causes.
STATUTORY PROVISIONS AND GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[7] In Raina v CIC Allianz Insurance Ltd[8] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[7] See s 3B(2) of the CL Act.
[8] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE PANEL
On 14 April 2022, the Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the review of Medical Assessor Perla’s certificate.
In response to these directions, the claimant uploaded to the portal at AD1 an index and bundle of documents paginated from pages 1 to 57 (CB). The insurer advised in an email that it does not wish to submit a bundle of documents or rely upon any other documents beyond those relied upon by the claimant.
On 14 July 2022, the Panel issued a further direction requiring the claimant, by
9 August 2022, to upload to the portal and serve on the insurer clinical records in relation to all consultations with and treatment of the claimant by Dr Soo [SIC Hsu] for the period for five years prior to the accident to date, that is from 1 June 2011 to date.On 23 November 2023, the claimant uploaded to the portal the following:
(a) clinical records from Dr Hsu from 1 June 2011;
(b) clinical records from Dr Kuok from 1 June 2011, and
(c) claimant’s supplementary submissions – treatment records.
The Panel has read and considered the documents relied upon by the parties on this review as identified in paragraphs 37 to 40 above in making its findings and determinations.
RADIOLOGICAL INVESTIGATIONS
The clinical records of Dr Kuok referred to above contain a number of reports in relation to radiological investigations of the injuries referred for assessment which were undertaken after the accident on 15 June 2016. The relevant findings and conclusions in those reports are summarised as follows:
Cervical spine X-ray – 21 June 2016
No significant bony or joint abnormality is demonstrated. No neural foraminal stenosis. Surgical clips at anterior part of neck likely due to previous thyroid surgery. No other significant abnormality is demonstrated.
Ultrasound left shoulder – 21 June 2016
Comment: Calcification at the subscapular tendon. Tendinosis and tear at the supraspinatus tendon. Subacromial/subdeltoid bursitis.
Ultrasound let shoulder – 11 May 20171.A 16 x 10 x 3 mm partial thickness tear within the anterior third fibres of the supraspinatus tendon on the background of tendinosis
2.Subscapularis calcific tendinopathic changes associated with a small 7 mm intrasubstance tear.
3.Mild subacromial/subdeltoid bursitis with some features of shoulder impingement. Patient may benefit from ultrasound guided injection.
4.Some degenerative changes within the acromioclavicular joint. The remainder of the study is within normal limits.
Ultrasound left shoulder – 9 April 2019
Complete rupture of the supraspinatus tendon. Mild to moderate subscapularis tendinosis with a partial thickness width rupture articular surface tear measuring 8mm. Moderate subacromial bursitis with impingement.
Right shoulder ultrasound and X-ray – 22 November 2019
X-ray: Osteoarthritic degenerative changes with inferior glenoid and humeral head articular marginal osteophytic spurring.Mild joint space narrowing. Small amount of spurring on greater tuberosity. Subacromial space is normal. Mild acromioclavicular (AC) joint degenrative change. There is some bony remodellingat the humeral neck which may be a result of previous fracture.
Ultrasound:1.Mild glenohumeral joint osteoarthritis.
2.Rupture of the supraspinatus tendon.
3.Partial width, full thickness tear of subscapularis superior fibres.
4.CT guided glenohumeral joint steroid injection is suggested.
CT Lumbosacral spine – 24 October 2017
Conclusion:1.Degenerative anterolisthesis L4 on L5 with facet joint degenerative changes, disc protrusion and significant canal and right sided foraminal stenosis.
2.Minor degenerative changes L5 on S1 with moderately marked facet joint degenerative changes and foraminal stenosis, more marked on the left.
CT Lumbosacral spine – 26 October 2020
1.Advanced facet osteoarthritis L4/5 and L5/S1.
2.Significant foraminal stenosis throughout but most marked on the right L4/5 and bilaterally at L5/S1.
3.2.7 cm infrenal aneursymal dilatation noted.
CT lumbosacral spine – 15 September 2021
Conclusion:1.At the L4/L5 level, there is marked facet joint degenerative change, disc protrusion, anterolisthesis and significant canal stenosis.
2.At the L5/S1 level, there is marked facet joint degenerative change with marked left foraminal stenosis.
CT Lumbosacral spine – 12 April 2022
Conclusion:1.Advanced facet osteoarthritis at L3/4, L4/5 and L5/S1.
2.Multilevel discopathy, disc bulges and protrusions, canal stenosis most marked at L4/5, multilevel foraminal stenosis, multilevel potential for neural irritation throughout.
3.Focal infrarenal abdominal aortic aneurysms noted (2.6cm)
CLINICAL RECORDS OF DR HSU
Dr Brian Hsu’s clinical notes confirm that the claimant was seen by him in February 2018 with regards to lumbosacral pain and that he arranged an MRI scan and prescribed a higher dose of Lyrica.
The MRI scan confirmed significant multilevel degenerative disease in the lumbosacral spine.
On review by Dr Hsu in April 2018, he discussed with the claimant her future treatment options including further injections, a chronic pain management program and surgical intervention. The claimant was not keen on surgical intervention but was interested in pursuing a chronic pain management program and Dr Hsu referred her to a pain management clinic in Blacktown.
MEDICO-LEGAL REPORTS
The claimant relies upon the following medico-legal reports on the Review:
(a) two reports of Dr Drew Dixon, orthopaedic surgeon, both dated 4 July 2019,[9] and
(b) five reports of Dr P Endrey-Walder, general and trauma surgeon dated
29 April 2019,[10] 9 December 1997,[11] 10 March 2000,[12] 12 December 2000[13] and 10 August 2001.[14][9] CB p 25.
[10] CB p 25.
[11] CB p 40.
[12] CB p 44.
[13] CB p 48.
[14] CB p 53.
Dr Dixon assessed the claimant approximately three years after the subject accident on
15 June 2019. He diagnosed that the following injuries were caused by the accident:(a) whiplash injury to the neck with post-traumatic stiffness and dysmetria, left sided facet arthralgia, shoulder brachialgia in the left upper limb with left trapezial muscle pain radiating to the index, middle and ring fingers and occipital headaches;
(b) seatbelt injury to the left shoulder with post traumatic stiffness with rotator cuff tear and tendinosis with subacromial bursitis and aggravation of previous asymptomatic AC arthrosis which is ongoing, and
(c) lower back strain injury with post traumatic lumbar stiffnesses with dysmetria, lumbosacral facet arthralgia all marked on the left with radicular complaint with aggravation of asymptomatic pre-existing L4/5 and L5/S1 degenerative spondylolisthesis.
Dr Dixon assessed that the claimant has a 16% WPI as follows:
(a) cervical spine – 5%;
(b) left upper extremity – 7%, and
(c) lumbar spine – 5%.
In Dr Dixon’s opinion there were no symptomatic pre-existing conditions.
Dr Endrey-Walder had examined the claimant between 1997 and 2001 in relation to injuries sustained to her left knee in a motor vehicle accident in October 1996 and injuries suffered to various parts of her body in the course of her work activity.
Dr Endrey-Walder’s report dated 29 April 2019, however, is consequent upon an assessment of the claimant in relation to injuries sustained in the subject motor accident in June 2016. In that report, Dr Endrey-Walder is of the opinion that the claimant suffered soft tissue injuries to her neck, left shoulder girdle and lower back in the motor accident. In his opinion, the overall impression is soft tissue injury, musculoligamentous, whiplash-type injury to the cervical spine, rotator cuff tendinitis and sub-acromial bursitis of the left shoulder, well in line with the likely impact of the claimant’s left shoulder with the passenger side door. Further, in his opinion, the claimant’s lower back condition is almost exclusively due to severe aggravation of pre-existing, long term marked facet joint arthritis in the lower lumbar region.
Dr Endrey-Walder assessed the claimant’s WPI as follows:
(a) neck – Diagnosis-Related Estimate (DRE) cervicothoracic category II – 5%;
(b) back (DRE lumbosacral category II) – 5%, and
(c) left shoulder – 13%.
On the basis of the Combined Value Charts, the claimant has a 21% WPI.
SUBMISSIONS
[15] CB p 2.
These submissions were lodged by the claimant in support of her application for review of the assessment of Medical Assessor Perla.
The claimant submits that Medical Assessor Perla diagnosed soft tissue injuries to the neck, left shoulder and lower back in the accident, and that he assessed 5% WPI for the lumbosacral spine under DRE category II, which is not challenged.
In summary, the claimant submitted that the assessment of Medical Assessor Perla was incorrect in a material respect on four grounds.
First, in respect of the left shoulder, the claimant submits that Medical Assessor Perla failed to state whether the left shoulder supraspinatus tear was related to the accident. He also measured left upper extremity impairment (UEI) at 15% (9% WPI), however, he deducted a UEI of 14% under cl 1.51 of the Guidelines on the basis that he found that this level of impairment in the “contralateral uninjured joint”, being the right shoulder. The claimant submits that this was in error because the right shoulder was not “uninjured” and therefore the Guidelines did not permit the right UEI to be used as a baseline for the assessment of accident related left UEI. Further, having impermissibly deducted 14% UEI from the 15% UEI assessment of the left shoulder, the Medical Assessor assessed 1% WPI for the left shoulder injury.
Second, the claimant submits that Medical Assessor Perla wrongly stated that Dr Endrey-Walder had not examined the right shoulder in 2019, when in fact he had done so, and had found virtually no restriction of movement. The claimant submits that this was a critical piece of evidence that was material to the question of whether the right shoulder was a proper baseline. The claimant further submits that it was critical evidence in support of the proposition that there had been a secondary sparing injury to the right shoulder from overuse because the claimant was sparing her injured left shoulder. The claimant further submits that restriction of the right shoulder only commenced after the claimant developed symptoms due to the overuse of her right shoulder because her left shoulder was injured in the accident, and further that nowhere in his reasons did Medical Assessor Perla reject the overuse injury alleged by the claimant.
Third, in respect of the neck, the claimant submits that Medical Assessor Perla assessed DRE category I on the basis that signs under DRE category II were not found, which seems unlikely given the previous DRE category II assessments of Dr Dixon and Dr Endrey-Walder that were before the Medical Assessor. The claimant submits that whilst there is insufficient evidence to show that this assessment was incorrect in a material respect, if the matter is referred to a Review Panel due to the erroneous left shoulder assessment, the Panel must assess all impairments again, including the cervical impairment.
Fourth, the claimant submits that Medical Assessor Perla breached his duty to provide reasons, and as a result, his assessment was incorrect in a material respect. The claimant submits that Medical Assessor Perla’s reasons did not expose a path of reasoning that could support his decision to rely on cl 1.51 of the Guidelines in assessing the shoulders, and further that there is no way of knowing if Medical Assessor Perla even considered the proposition that the right shoulder impairment was caused by secondary overuse, and nor did he provide any reasons for any rejection of that contention.
The claimant submits that to the extent that one of Medical Assessor Perla’s reasons was that there was no evidence of unrestricted movement of the right shoulder in the report of Dr Endrey-Walder, this was factually incorrect. The claimant further submits that Medical Assessor Perla was bound to provide reasons in respect of the question of whether the left shoulder supraspinatus tear was caused in the accident, not only because it was specifically nominated in the referral, but also because Dr Dixon’s assessment relied upon that conclusion.
The claimant further submits that Medical Assessor Perla did not expose his path of reasoning, nor is it clear that he even considered the possible causal connection between the right shoulder injury and the accident, and he failed to explain the basis upon which cl 1.51 was open to him when the contralateral joint was not injured as required by that clause.
Claimant’s supplementary submissions[16]
[16] CB p 9.
The claimant relies upon these submissions to supplement its primary submissions lodged with the application for review of the certificate of Medical Assessor Perla.
The claimant submits that whilst the injuries which were referred to Medical Assessor Perla for assessment were to the cervical spine, left shoulder and lumbar spine, the certificate of Medical Assessor Perla refers to an intervening sparing injury to the right shoulder. The claimant submits, therefore, that because the Review Panel may only consider the claimant’s impairment as it is on the date of the assessment (referring to cl 1.21 of the Guidelines), the Panel must re-examine the claimant to assess the original injuries referred to Medical Assessor Perla and the following additional injury:
“Right shoulder – rupture of the supraspinatus tendon; partial width full thickness tear of the subscapularis; aggravation of glenohumeral joint arthritis; soft tissue injury – second injury occasioned by overuse due to sparing her injury [SIC] left arm as a result of the motor accident.”[17]
[17] CB p 9.
The claimant further submits that in respect of the right shoulder assessment, there should be no deduction for pre-existing impairment for two reasons – because there is no objective evidence permitting pre-injury impairment to be measured as required by cls 1.31 and 1.32 of the Guidelines; and also because Dr Endrey-Walder recorded on 29 April 2019 that the claimant “had virtually full range of arc movement of the right shoulder” and the claimant was therefore unimpaired until the secondary overuse sparing injury occurred.
Claimant’s supplementary submissions – treatment record
The submissions are made by the claimant in relation to the clinical records of Dr Hsu and Dr Kuok which were uploaded to the portal in response to a direction by the Panel on
14 July 2022.The claimant submits that the records from Dr Hsu and Dr Kuok disclose no prior symptoms in the claimant’s left shoulder or any significant issue in the cervical spine suggestive of pre-existing impairment, and also confirm the claimant’s account of the previous injury to her right shoulder, a displaced fracture to the right surgical neck of the humerus, when she tripped over her dog and fell on 18 February 2010; and confirmed that the claimant made a recovery from this incident.
The claimant submits that the records produced in relation to the previous right shoulder fracture confirm that Medical Assessor Perla erred in treating the right shoulder as an “uninjured collateral joint” because the right shoulder was not in an equivalent condition to the uninjured left shoulder at the time of the accident, and could not serve as a baseline for expected restriction of movement of the left shoulder absent the motor accident. It is submitted that this material, together with the report of Dr Endrey-Walder, confirm that the claimant was without impairment in the right shoulder prior to the accident, but that it was susceptible because of a previous fracture, and that the left shoulder was not so susceptible before the accident. The claimant further submits that this material is also consistent with overuse injury to the right arm as a consequence of sparing the left shoulder after the accident, and that it follows that there may be no reduction from the recorded left shoulder impairment by reference to the right shoulder restriction for two reasons:
(a) the right shoulder was injured before the motor accident, and although it was unrestricted at the time of the accident, it was not a “collateral uninjured joint” as per cl 1.51 of the Guidelines, and
(b) the right shoulder was uninjured after the accident due to overuse from sparing the injured left shoulder and was not a “collateral uninjured joint” per cl 1.51.
The claimant submits that it follows that the total UEI for both arms must be attributed to the motor accident injury.
With regards to the lower back, the claimant submits that the records confirm the claimant’s testimony that she suffered from lower back pain prior to the accident due to an earlier injury, but that it was appropriate that Medical Assessor Perla did not make a deduction for pre-existing impairment in view of the requirements of the Guidelines, and in particular cls 1.31 and 1.32, which make it clear that a deduction for pre-existing impairment may only be made where the pre-accident records are sufficiently detailed and are reliable to permit an accurate assessment of the pre-accident degree of permanent impairment. The claimant submits that therefore, to deduct a pre-existing permanent impairment of the lumbar spine at 5% under DRE category II, it would be necessary for the clinical records to objectively establish that the claimant suffered from guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) at the time of the accident. The claimant submits that the records from Dr Hsu and Dr Kuok do not contain such information, and therefore cl 1.131 of the Guidelines requires that the “possible presence” [of pre-existing impairment] should be ignored.
The claimant submits that these records provide no evidence at all of guarding or dysmetria, and whilst there is reference to past radiating symptoms, these records are not proximate to the date of the accident, and there is no evidence to establish that such complaints followed the distribution of a specific nerve root.
The claimant further submits that the last reference to leg pain in the records was on 16 December 2015, more than six months prior to the subject motor accident, and that on the occasions from January 2016 to June 2016 that the claimant attended Dr Kuok there was no reference made to radicular pain and only one complaint of back pain. Moreover, the claimant submits that a reference to leg symptoms would have been insufficient to establish pre-existing non-verifiable radicular complaints as defined under Table 8 of the Guidelines.
The claimant submits that there is no evidence that her symptoms consisted of shooting pain, burning pain, or tingling, and there is no evidence that such symptoms followed the distribution of a specific nerve root, and therefore it is impossible to conclude that the claimant satisfied any of the DRE category II criteria at the time of the accident, and no deduction may be made for pre-existing impairment.
The claimant further notes that the requirements of cls 1.31 and 1.32 apply equally to the assessment of pre-existing shoulder impairment. It is submitted that there is no evidence of any restriction of movement in either shoulder at the time of the accident, and as such the possible presence of pre-existing impairment must be ignored.
In conclusion the claimant submits that the pre-accident records of Dr Hsu and Dr Kuok confirm that there is no basis for assessments of, or deduction for, pre-existing impairment in respect of the right shoulder, the left shoulder, the cervical spine or the lumbar spine, and that upon re-assessment, the Guidelines require that all assessed impairments at the cervicothoracic spine, left shoulder, right shoulder and lower back, be attributed to the motor accident.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Kenna on 6 July 2022. The re-examination report is as follows:
“Background
The claimant is a 75-year-old female and pensioner, who is divorced and lives alone at Dharruk in Sydney,
With regards to her past history, she said that she had not injured her cervical spine before the subject accident on 15 June 2016 but that she had injured her lumbar spine in 1996 in a motor vehicle accident but she said that she recovered within several years after which her lumbar spine and was no longer problematic.
The claimant said that she injured her left shoulder in a motor vehicle accident but acknowledged that there was no direct injury to her right shoulder in the subject accident in 2016.
With regards to her pre-accident medical history, although the claimant initially stated that she had an injury to the right shoulder, she then somewhat corrected this by stating that she may have injured her right shoulder when she fell over her dog but subsequently regained full range of movement and did not require any further active treatment.
She has had a left total knee replacement well over a decade ago, which was followed by a right knee replacement some four years ago. Her right shoulder was injured when she tripped over her dog in February 2010 and in November 2019 an ultrasound of the right shoulder indicated a rupture of the supraspinatus tendon and a tear of subscapularis superior fibres.
History of the motor accident on 15 June 2016
The claimant confirmed the major details of the motor vehicle accident on 15 June 2016. She was a front seat passenger in a Holden Caprice which was being driven by her son. She was wearing a seatbelt. They were stationary at traffic lights when another vehicle collided with the rear of the Caprice with impact and she was thrown forward and then backwards in the cabin.
There was no loss of consciousness. She was able to exit the vehicle.
Both police and ambulance attended. The claimant’s son did go to hospital but she was not transported to hospital herself and was taken home eventually by the tow truck driver.
History of symptoms and treatment following the motor accident
She then consulted her general practitioner, Dr Kuok, the following day who noted that there was complaint of cervical pain as well as complaint of left shoulder symptoms for which she underwent an ultrasound of the left shoulder which indicated calcification of the subscapular tendon, tendinosis and a tear of the supraspinatus tendon, with mild to moderate degenerative changes of the AC joint, with subacromial/ subdeltoid bursitis (see Radiological Investigations above).
Treatment was initially conservative.
The claimant was referred to physiotherapy, which she attended for about 11 months. which was complemented with hydrotherapy.
‘However, her lower back became increasingly problematic and she was referred by Dr Kuok to Dr Brian Hsu, orthopaedic surgeon.
He recommended an increased dosage of Lyrica but advised against surgery.
The claimant was also not keen on having surgery, nor has she had any operative procedure on her left shoulder, either pre or post the accident in 2016.
After Dr Kuok retired she came under the care of Dr Liew.
Further ultrasounds of the left shoulder were taken in May 2017 and April 2019 (see Radiological Investigations above).
The claimant acknowledged that she had no history of right shoulder problems prior to the accident in 2016 and that her right shoulder was not injured in the subject accident.
The first recording of any problem pertaining to the right shoulder was in November 2019 some three years later when she was referred by Dr Kuok for ultrasound and x-ray of the right shoulder. This indicated widespread degenerative changes with glenohumeral joint arthritis, rupture of the supraspinatus tendon and a partial width full-thickness tear of the subscapularis, however she was not referred to any specialist.
She acknowledged that the symptoms in her right shoulder did not commence until three years after the motor accident in 2016, and she attributed this to overuse, that is, protecting the left shoulder by overusing the right.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
The claimant’s current symptoms consist of localised neck pain with pain radiating from the neck towards the left shoulder and slightly down to the insertion of the deltoid but no further.
There are absolutely no symptoms involving the right upper extremity and the left symptoms cease mid upper arm.
She was not complaining of pain in the right shoulder.
With regards to her lower back. the claimant complained of back pain with a complaint of symptoms into the left lower extremity but not past the mid-calf.
She said that she has had no surgery for either shoulder.
She has had surgery for the knees unrelated to the accident.
She said that she is left-handed and prior to the clinical examination, on re-questioning she stated that she had no prior problems pertaining to the right shoulder.
She attributed any symptoms in the right shoulder and arm to over-use. She confirmed that she has not had a frank injury to the right shoulder and therefore attributes this to secondary symptoms.
She has had an injection to the lumbar spine with little to no benefit.
She uses a TENS machine, heat pads and takes medications, up to six Panadeine Forte a day, and she also uses Endone and Panadeine as required.
With regards to the claimant’s current situation, it was pointed out that her injuries were soft tissue, that she had sustained no fractures and that some six years had elapsed since the accident in June 2016.
She then acknowledged in retrospect that her left shoulder had improved a bit over time and that her back was as problematic as ever with little improvement.
At the time of the assessment, the claimant was wearing a loose-fitting brace, which appeared unscuffed. She said that her neck is generally stiff and can be associated with headaches three to four times per week.
She also avoids lying on her left shoulder generally at night.
Current and proposed treatment
Nil proposed.CLINICAL EXAMINATION
General presentationThe claimant was a solidly built individual who was asked to give her best effort with regards to range of movement. It was a winter’s day (she was seen in July) and she was wearing a heavily knitted woolly cardigan on top of normal clothing-which she took off herself.
She understood that instruction and movements were repeated on at least three occasions for each region. The following results were obtained.
Cervical spine (cervicothoracic)
No muscle guarding or spasm present, symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.
No neurological deficit in either upper limb.Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
MOVEMENTS RANGE EXHIBITED Flexion 30% restriction Extension 30% restriction Rotation to the right 30% restriction Rotation to the left 30% restriction Lateral bending to the right 30% restriction Lateral bending to the left 30% restriction Neurological tests
Reflexes:
REFLEX LEFT RIGHT TRICEPS JERK Normal Normal BICEPS JERK Normal Normal BRACHIORADIALIS Normal Normal Sensation: No obvious alteration in normal sensation.
Muscle Power:
LEVEL MOTOR POWER LEFT RIGHT C4 5/5 NORMAL NORMAL C5 5/5 NORMAL NORMAL C6 5/5 NORMAL NORMAL C7 5/5 NORMAL NORMAL C8 5/5 NORMAL NORMAL T1 5/5 NORMAL NORMAL 5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistanceDural Tension Tests:
TEST RIGHT LEFT PASSIVE NECK FLEXION Normal Normal BRACHIAL PLEXUS STRETCH Normal Normal Lumbar spine (lumbosacral)
No muscle guarding or spasm present, symmetrically reduced uniform range of motion(stiffness)but no asymmetry present.
No neurological deficit in either lower limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
MOVEMENTS RANGE EXHIBITED Flexion 40% restriction Extension 40% restriction Rotation to the right 40% restriction Rotation to the left 40% restriction Lateral bending to the right 40% restriction Lateral bending to the left 40% restriction
Neurological tests
Reflexes:
REFLEX LEFT RIGHT KNEE JERK Normal Normal ANKLE JERK Normal Normal Sensation: No alteration of sensation.
Muscle power:
LEVEL MOTOR POWER LEFT RIGHT L3 5/5 NORMAL NORMAL L4 5/5 NORMAL NORMAL L5 5/5 NORMAL NORMAL S1 5/5 NORMAL NORMAL 5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistanceMuscle atrophy: nil
THIGH LEFT = RIGHT CALF LEFT = RIGHT No unilateral muscle atrophy present.
Dural tension tests:
TEST RIGHT LEFT PRONE KNEE BEND Normal Normal STRAIGHT LEG RAISE Normal Normal SLUMP Normal Normal Upper extremity
Left Shoulder
The Panel accepts that clause 1.51 of the Guidelines cannot be applied to use the contralateral right shoulder joint as a baseline in the assessment of impairment to the claimant’s left shoulder because the right shoulder was not ‘uninjured’ (see past history in Background above).
Accordingly, impairment of the left shoulder was assessed by measuring a range of motion as follows:
Measurement
Reference
(AMA 4)Normal
Upper Extremity Impairment
Flexion
150°, 160,150
Figure 38 (43)
180°
2
Extension 50°, 50,50 Figure 38 (43) 50° 0 Adduction 40°, 40,40 Figure 41 (44) 50° 0 Abduction 140°,150, 140 Figure 41 (44) 180° 2 Internal Rotation 70°,80 ,70 Figure 44 (45) 90° 1 “External Rotation 80°,80,80 Figure 44 (45) 90° 0 Total 5 Goniometer measured
Both upper arms were 39cm.Mid-forearms 33cm bilaterally.
No muscle wasting.
There was a complete absence of any muscle wasting to indicate disuse.
Good muscle power. Reflexes, power and sensation were all intact.
Upon repetition, the claimant was asked for a maximum effort for the left shoulder
The claimant was asked to draw all her current symptoms on a pain pattern diagram.
She did not indicate on that diagram any pain over the right shoulder involving the right upper limb. However, it is accepted that there was some pain in relation to the
left shoulder, cervical spine and lower back.
Cervical spine impairment
DRE Cervicothoracic Category I: Complaints or Symptoms
The claimant has no significant clinical findings, no asymmetry of motion, no muscular guarding or history of guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension x-rays and no impairment related to illness or injury.
Structural Inclusions: None
Impairment: 0% whole person impairment
Lumbar spine impairment
DRE Lumbosacral Category I: Complaints or Symptoms
The claimant has no significant clinical findings, no asymmetry of motion, no muscular guarding or history of guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension x-rays and no impairment related to illness or injury.
Structural Inclusions: None
Impairment: 0% whole person impairment
Left shoulder impairment
Using figs -38, 41, 44 from above listed references, and range of motion from examination chart5% UEI x 0.6 = 3% WPI
Permanent impairment table
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Left shoulder AMA 4, Chapter 3, 3.1,
Ch3, pp. 43-45
Figs 38-44Yes 3 0 3 2 Cervical spine
DRE IAMA 4, Chapter 3, pp. 102-107,
Guidelines Tables 7& 8Yes 0 0 0 3 Lumbar spine
DRE IAMA 4, Chapter 3, pp. 102-107
Guidelines Tables 7& 8Yes 0 0 0 *%WPI = percentage whole person impairment
Apportionment
Nil
Pre-existing/subsequent impairmentNil.
Effects of Treatment
Nil
Determination Regarding the Degree of Whole Person Impairment of the
Injured Person as a Result of the Injuries Caused by the Motor Accident
The total percentage whole person permanent impairment for the assessed injuries caused by the motor accident is 3% WPI. Therefore, the total whole person impairment is not greater than 10%.
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Motor Accident Permanent Impairment Guidelines.
Permanent impairment ratings take symptoms into account, however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[18] and Insurance Australia Limited v Marsh[19].
[18] [2021] NSWCA 287 at [40], [41] and [45].
[19] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the re-examination appoint of Medical Assessor Kenna in its reasons and adds the following further reasons.
Causation and diagnosis
The Panel notes that the claimant was a front seat passenger in a stationary vehicle and that another vehicle collided with the rear of the vehicle she was in. The claimant gave a history on re-examination by Medical Assessor Kenna that she was wearing a seatbelt and that the impact of the collision was of sufficient force to cause her to be thrown forward and then backwards. She consulted Dr Kuok the following day, who noted complaint of pain in the left shoulder, neck and back. She underwent an ultrasound of the left shoulder, which indicated calcification of the subscapular tendon, tendinosis, and a tear of the supraspinatus tendon, with mild to moderate degenerative changes in the AC joint, with subacromial/subdeltoid bursitis. Despite approximately 11 months of physiotherapy and some hydrotherapy, the symptoms in her back worsened and she underwent a facet joint injection to the lower back in December 2017 and was referred to the orthopaedic surgeon, Dr Hsu, but surgery was not recommended.
The Panel is satisfied that on the basis of the history of the accident provided to Medical Assessor Kenna, the findings on radiological investigation after the accident, and the treatment the claimant underwent recorded in the clinical records of Dr Kuok and Dr Hsu, that the motor accident on 15 June 2016 caused the following injuries to the claimant:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury, and
(c) left shoulder – soft tissue injury.
The Panel is not satisfied that the accident caused either a frank injury to the claimant’s right shoulder, or a secondary injury to the right shoulder from overuse of it because the claimant was sparing her left shoulder which was injured in the accident, for the following reasons.
There is no evidence contemporaneous to the accident in June 2016 to support a diagnosis of any injury to the right shoulder in the accident or that any reduced mobility is in any way related to the subject accident.
The claimant acknowledged to Medical Assessor Kenna that her right shoulder was not injured in the subject accident and that the symptoms in her right shoulder did not commence until three years after the accident, which she attributed to overuse – protecting the injured left shoulder by overusing the right shoulder, which the Panel does not accept.
When Dr Endrey-Walder assessed the claimant in April 2019, he does not record in his report any complaint by the claimant in relation to her right shoulder. Whilst Dr Endrey-Walder clinically examined the right shoulder, he found that the claimant had a virtually full range of arc movement at the right shoulder.
Dr Dixon assessed the claimant on 1 July 2019, just over three years post accident. In his report he records that the claimant’s primary complaints were the neck, left shoulder and lower back. There was no mention of any right shoulder symptoms and he did not examine the right shoulder.
Therefore, the Panel has determined that the following injury to the claimant was not caused by the accident on 15 June 2016:
(a) right shoulder.
Impairment assessment
The Panel has determined that the degree of permanent impairment as a result of the injuries caused by the motor accident on 15 June 2016 is a combined total of 3% as follows:
(a) left shoulder – 3% – with no pre-existing or subsequent causes;
(b) cervical spine – 0% – with no pre-existing or subsequent causes, and
(c) lumbosacral spine – 0% – with no pre-existing or subsequent causes.
Because the Panel has determined that the accident did not cause any frank injury or secondary overuse injury to the right shoulder, there is no assessable impairment of the claimant’s right shoulder.
CONCLUSION
Whilst the Panel has made the same determination as Medical Assessor Perla that the degree of permanent of the injuries caused by the accident is not greater than 10%, because the Panel has assessed the combined degree of impairment of those injures to be 3% WPI, which is different to Medical Assessor Perla’s assessment of a combined 6% WPI, the Panel revokes the certificate of Medical Assessor Perla dated 24 November 2021. A replacement certificate is attached at the commencement of these Reasons.
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