Ward v QBE Insurance (Australia) Limited

[2025] NSWPICMP 117

DETERMINATION OF REVIEW PANEL

CITATION:

Ward v QBE Insurance (Australia) Limited [2025] NSWPICMP 117

CLAIMANT:

Gail Ward

INSURER:

QBE Insurance (Australia) Limited

REVIEW PANEL

MEMBER:

Alexander Bolton

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

25 February 2025

CATCHWORDS:

MOTOR ACCIDENTS – Review of certificate of Medical Assessor dated 15 December 2022 finding 0% whole person impairment (WPI); claimant injured on 13 January 2018 when travelling on Newell Highway at 100 km/h when a car entered from a side road and collided with her; claimant’s immediate injury was a fractured sternum; claimant admitted in hospital until 16 January 2018; injuries referred for assessment included right shoulder, left shoulder, sternum fracture, thoracic spine, lumbar spine, right hip, and right leg; following the accident the claimant’s main complaint of injury referred to her sternum fracture; issues of causation of injuries considered by Review Panel; additional records sought by Review Panel showed no reporting and limited treatment of other areas of injury by medical practitioners; claimant found to be a poor historian but accepted as genuine; Review Panel satisfied that the accident had a more than negligible effect on injuries to the claimants sternum, right shoulder, and left shoulder but was not satisfied that other claimed injuries arose from the accident; Held – claimant assessed as having 4% WPI consisting of 2% WPI for each shoulder; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Determination

1.     The Review Panel revokes the certificate of Medical Assessor Woo dated 15 December 2022.

2.     The Review Panel finds that the claimant has suffered the following injuries caused by the accident:

(a)    the claimant’s sternum;

(b)    the claimant’s right shoulder, and

(c)    the claimant’s left shoulder.

3.     The Review Panel assesses the claimant’s total whole person impairment as 4%.

STATEMENT OF REASONS

INTRODUCTION

1. This is a review of a decision of Medical Assessor Woo (Medical Assessor) dated 15 December 2022.

2. The Medical Assessor found the following injuries caused by the motor accident gave rise to a whole person permanent impairment (WPI) of 0%;

   (a)    right shoulder – soft tissue injury;

   (b)    left shoulder – soft tissue injury;

   (c)    sternum fracture;

   (d)    thoracic spine – soft tissue injury;

   (e)    lumbar spine – soft tissue injury;

   (f)    right hip – soft tissue injury, and

   (g)    right leg – soft tissue injury.

3. The following injuries were referred by the Personal Injury Commission (Commission) for assessment:

   (a)    right shoulder – impact injury with associated pain and restricted range of motion;

   (b)    left shoulder – impact injury;

   (c)    sternum fracture;

   (d)    thoracic spine – impact injury with associated pain;

   (e)    lumbar spine – right paracentral disc bulge compressing the L5 nerve root, causing aggravation of previously asymptomatic scheuerman’s disease and spinal canal stenosis;

   (f)    right hip – impact injury with associated pain, extensive bruising over the anterior superior iliac spine and ongoing restricted range of motion, and

   (g)    right leg – impact injury with associated pain, restricted range of motion and radiculopathy.

4. There is a dispute between Gail Ward (the claimant) and the insurer about the degree of permanent impairment under Schedule 2 s 2(a) of the Motor Accident Injuries Act 2017 (the Act).

5. The Medical Assessor having found a WPI assessment of 0%, the claimant sought a review of this decision, and this is now for consideration by this Review Panel.

Bundles of documents

1. The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]).The Review Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Review Panel is to come to its own conclusion and to take its own history.

The accident

1. On 13 January 2018, the claimant was driving from Queensland to the Australian Capital Territory to visit her son. She was wearing a seat belt. She was travelling on the Newell Highway at approximately 100kmph. The insured car came out of a side road on her left and in front of her car. Her car “T-boned” the other vehicle. Air bags in her car were deployed. She did not lose consciousness.

2. An ambulance attended the scene. Reportedly, she had to be cut out of her car however, the ambulance report indicates that this was not so. The claimant was however, cut out of her car by the attending Fire Brigade officers. She was transported to Coonabarabran Hospital, which was the closest public Emergency Department.

3. She was transferred to Dubbo Hospital on 14 January 2018 where she had the following investigations:

   “X-ray cervical spine – No acute fracture. The well demarcated fracture line at the base of C2

   representss a previous injury or unfused synchondrosis

   X-ray chest – The lungs are well aerated and clear

   X-ray thoracic spine – Mild scoliosis, no acute fracture

   CT chest – Displaced fracture through the upper body of the sternum

   She also had pain in the right hip and pelvic area.”

4. She was treated conservatively and discharged on 16 January 2018.

Claimant’s submissions

1. The claimant submits that the assessment of the Medical Assessor was incorrect in a material respect for the following reasons:

   (a)    failure to assess the claimant’s lumbar spine injury in accordance with the Permanent Impairment Guidelines (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4), and

   (b)    failure to provide adequate reasoning in respect in respect of the assessment of the claimant’s right and left shoulder impairment.

Assessment of the claimant’s lumbar spine

1. At pages 9 and 10 of his reasons, the Medical Assessor provided a determination of WPI. For the lumbar spine, he determined that the claimant’s current WPI was 0%, and, by way of corollary, that there was no WPI of the lumbar spine caused by the accident. The justification for the assessment of 0% WPI (Diagnosis Related Estimate (DRE) Category I) was that the claimant demonstrated symptoms of injury, but no clinical signs.

2. The claimant submits that a finding of “no clinical signs” in relation to the lumbar spine is at odds with the Medical Assessor’s findings on clinical examination. In particular, the claimant refers to the Medical Assessor making a finding that “there were non-verifiable radicular complaints – feathery feeling in the right lower limb.”

3. The claimant refers to the Guidelines which define non-verifiable radicular symptoms as follows:

   “Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”

4. The claimant submits that applying the Guidelines, a finding of non-verifiable radicular complaints means that the claimant falls within DRE Category II for the lumbar spine – 5% WPI. The claimant says that accordingly, the Medical Assessor has fallen into error in determining that the claimant’s current WPI in relation to the lumbar spine is 0%.

5. Furthermore, the claimant says that to the extent that there may have been pre-existing impairment of the lumbar spine, the Medical Assessor did not consider apportionment in accordance with s 6.31 to 6.33 of the Guidelines.

Assessment of the claimant’s shoulders

1. Regarding the shoulders, the claimant says that the Medical Assessor did not record his clinical findings in relation to range of motion. The claimant says that he merely found that “both shoulders had similar range of motion, except slight restriction of internal rotation in the right shoulder.” The claimant says that it is unclear whether both shoulders had a similarly restricted range of motion for the purposes of calculating whole person impairment. Furthermore, the claimant says that the finding that range of motion was “normal” in both shoulders appears to be a matter of subjective opinion on the part of the Medical Assessor and is not sufficient for a proper calculation of the claimant’s WPI.

2. The claimant says that as a matter of fairness and transparency, the Medical Assessor needed to record his findings in relation to the range of motion so that the claimant could verify whether there was any permanent impairment. The claimant says that the Medical Assessor’s finding that the claimant’s range of motion was “normal” is irrelevant.

Insurers submissions

1. The insurer addresses these injuries as follows:

Sternum

1. The claimant was attended to by ambulance personnel. The insurer says the ambulance report recorded the following history:

   “C/t 69yo female MVA – chest pain. O/a, 2 car MVA traffic blocked by firies in both direction…. Pt still in car. Pt not trapped but sitting in front seat with chest pain. Off duty critical care nurse on scene. Pt was travelling at approx. 100km/hr, and was hit by a 4WD with a caravan, travelling approximately 30km/hr. Nil pts in that car. Pt states she had one vomit when car crashed but did not hit her head and is not nauseas now. Car with pt in it – small vehicle with extensive damage to front end, nil cabin intrusion, both airbags deployed. VRA on scene, firies on scene and police on scene shortly after. Collar and manual spinal immobilisation put in place, methoxyflurane administered. O/e pt is GCS15, well perfused, tachypnoeic, shallow breathing due to chest pain, however no abnormal breath sounds, small laceration on forehead, RLQ abdo pain consistent with seatbelt mark, nil discolouration, abdo otherwise soft and non tender, extrication took place with B pillar out and spinal board. Pt remained stable throughout”.

2. The claimant was transported to Coonabarabran Hospital after the accident. The insurer says that the discharge referral from the hospital noted that the claimant complained of pain in her chest. She had no pain in her legs or arms. The claimant’s chest was very tender over the sternum. She was to be transferred to Dubbo Hospital for further imaging.

3. The discharge referral from Dubbo Base Hospital noted that the claimant’s “only injury was a displaced fracture of the sternum” which was for non-operative management.

4. The insurer accepts that the claimant sustained an injury to her sternum as a result of the motor accident. This is consistent with the injuries recorded in the ambulance report and the discharge referrals from the hospitals.

5. It is submitted that any injury in the sternum has resolved. Dr Machart, orthopaedic surgeon, recorded a history that the claimant’s sternum was no longer painful.

6. The insurer refers to s 6.23 of the Guidelines which states that an uncomplicated healed sternal fractured does not result in any assessable impairment.

7. As such, the insurer submits that there is no assessable impairment arising from the sternum sustained in the subject accident.

Right shoulder

1. The insurer says that there are causation issues as to the alleged injury in the right shoulder.

2. The insurer says that the claimant did not complain of any symptoms in her right shoulder to the ambulance personnel on the day of the accident.

3. The discharge referral from Coonabarabran Hospital noted that there were no abnormalities in the claimant’s shoulders.

4. The insurer says that the claimant did not report any symptoms in her right shoulder during her admission at Dubbo Base Hospital. She was also not referred for any radiological investigation in her right shoulder during her time at Coonabarabran Hospital and Dubbo Base Hospital.

5. The insurer says that the claimant had a pre-accident history of symptoms in her rotator cuff of the right shoulder.

6. It is submitted that the pathology seen in the right shoulder is due to age related degenerative changes, or due to the pre-existing symptoms in the rotator cuff of the right shoulder, as opposed to any acute injury sustained in the motor accident.

7. It is submitted that any injury in the right shoulder is unrelated to the motor accident.

Left shoulder

1. The claimant says that there are causation issues going to the alleged injury in the left shoulder.

2. The insurer says that the claimant did not complain of any symptoms in her left shoulder to the ambulance personnel on the day of the accident.

3. The discharge referral from Coonabarabran Hospital noted that there were no abnormalities in the claimant’s shoulders.

4. The insurer says the claimant did not report any symptoms in her left shoulder during her admission at Dubbo Base Hospital. She was not referred for any radiological investigation in her left shoulder during her time at Coonabarabran Hospital and Dubbo Base Hospital.

5. The insurer submits there is no evidence of any acute injury to the left shoulder sustained in the motor accident.

Thoracic spine

1. The insurer refers to the discharge referral of Coonabarabran and Dubbo Base Hospitals and notes that the only injury recorded sustained by the claimant in the motor accident was a fracture of the sternum.

2. The insurer says that an X-ray of the thoracic spine performed after the accident revealed mild scoliosis of the thoracic spine. The insurer submits this is indicative of degenerative pathology only.

3. It is submitted by the insurer that the claimant did not sustain an injury to the thoracic spine in the subject accident.

Right hip

1. The insurer says that there are significant causation issues in relation to the alleged injury to the right hip.

2. The insurer refers to the discharge referral of Coonabarabran and Dubbo Base Hospitals and notes that the only injury recorded as sustained by the claimant in the motor accident was a fracture of the sternum.

3. The insurer says that the X-ray and CT imaging of the right hip carried out after the accident revealed osteoarthritic change, which is unrelated to any acute injury sustained in the motor accident.

4. The insurer says that there is a prior history of a diagnosis of joint osteoarthritis.

5. The insurer submits that any injury to the right hip is unrelated to the subject accident.

Lumbar spine

1. The insurer says that there are significant causation issues in relation to the alleged injury to the lumbar spine.

2. The claimant did not complain of any pain in her lumbar spine to the ambulance personnel, or during her admission at Coonabarabran or Dubbo Base Hospitals.

3. The insurer refers to the discharge referral of Coonabarabran and Dubbo Base Hospitals and notes that the only injury sustained by the claimant in the motor accident was a fracture of the sternum.

4. The insurer says that there is a prior diagnosis of chronic lower back pain, restricted movement in the lumbar spine, Scheuermann’s disease and spinal canal stenosis.

5. The insurer says that radiological investigations of the lumbar spine carried out after the accident revealed severe degenerative changes, with spinal and foraminal stenosis, in addition to lumbar scoliosis associated with multilevel advanced degenerative lumbar disc changes and facet joint arthropathy. It is submitted that this is evidence of significant degenerative changes and is unrelated to any acute injury sustained in the motor accident.

Right leg

1. The insurer says that the discharge referral at Coonabarabran Hospital recorded no abnormalities in the claimant’s legs.

2. The discharge referral from Dubbo Base Hospital noted that the only injury sustained in the accident was a fracture to the sternum. There was no mention of the alleged right leg injury.

3. The insurer submits the claimant did not sustain any injury to the right leg in the subject accident.

4. In conclusion, the insurer says the claimant has a significant prior medical history. She was previously diagnosed with chronic lower back pain, Scheuermann’s disease, arthritis, right shoulder rotator cuff signs, chronic obstruction airways disease, osteoporosis and depression.

5. It is submitted that the only injury sustained in the subject accident was a fractured sternum. This is consistent with the injuries recorded in the ambulance report, the discharge referral from the hospitals and the application for personal injury benefits.

Medical evidence

1. The Medical Assessor provided a certificate dated 15 December 2022. He found 0% WPI.

2. The Medical Assessor noted that his examination findings of the right shoulder were similar to that of Dr Machart, for the insurer, more than two years previously on 4 May 2020. The Medical Assessor said that this indicated the claimant had a normal range of movement in keeping with her age and the right shoulder condition has reached maximum medical improvement for more than two years.

3. The Medical Assessor commented that Dr Kenna reported some restriction of movement in the left shoulder, thoracic spine, lumbar spine and right hip. There were not two or more of the five signs for the diagnosis of radiculopathy in the upper and lower limbs. The absence of ankle reflex in both lower limbs was said to be commonly present in a person of her age at 74 years at the time of examination. He considered the minor loss of motion in the left shoulder reported by Dr Kenna was related to natural degenerative changes at her age.

4. The Medical Assessor agreed with Dr Machart’s opinion, who indicated that the claimant’s then current symptoms were likely related to generalised, osteoarthritic changes rather than the accident of 13 January 2018.

5. The Medical Assessor noted that Dr Kenna assessed 19% WPI but commented that at that time, the claimant “is yet to satisfactorily stabilise”.

Summary of relevant radiological and medical imaging and other investigations

1. The following radiological and medical imaging was reviewed by the Medical Assessor:

   “Ultrasound right shoulder on 22/03/2018

   Supraspinatus and infraspinatus tendinosis. Intermediate grade anterior and posterior supraspinatus partial thickness tears. Mild subacromial bursitis.

   X-ray right hip on 22/03/2018

   There is osteoarthritic change in the right hip joint with loss of joint space.

   MRI thoracic and lumbar spine on 29/05/2018

   Signs of severe degenerative changes, spinal and foraminal stenosis with nerve roots impingement at multiple levels most pronounced at L5/S1.

   CT chest on 03/07/2019

   Old healed upper sternal fracture. No destructive bone lesions. No acute fractures.

   CT lumbar spine and sacroiliac joints on 24/01/2020

   Lumbar scoliosis associated with multilevel advanced degenerative lumbar disc changes. Facet joint arthropathy. Moderate to severe L4-5 central central stenosis.

   CT right hip on 24/01/2020

   Mild osteoarthritic change.

   CT lumbar spine on 16/07/2020

   Multilevel degenerative changes of lumbar facet joint and disc spaces, mild lumbar scoliosis, and mild degenerative changes of bilateral SI joints. Multilevel degenerative central canal narrowing more prominently at L4-5 level with AP diameter of 4mm. Multilevel degenerative subarticular recess narrowing with possible compression of right descending L4 and definite compression of right descending L5 nerve root”.

2. The Medical Assessor concluded that there were not two or more of the five signs required for the diagnosis of radiculopathy in the upper and lower limbs. He said there could have been aggravation of pre-existing degenerative changes in her spine, shoulders and right hip after the motor accident on 13 January 2018. The aggravation would have subsided within three to six after the accident.

1. The Medical Assessor provided a table of WPI assessment as follows:

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Right shoulder	Chapter 3	Yes	0%	0%	0%
2	Left shoulder	Chapter 3	Yes	0%	0%	0%
3	Sternum fracture	No appropriate assessment	Yes	0%	0%	0%
4	Thoracic spine	Chapter 3, page 111 Table 74	Yes	0%	0%	0%
5	Lumbar spine	Chapter 3,  page 110 Table 72	Yes	0%	0%	0%
6	Right hip	Chapter 3	Yes	0%	0%	0%
7	Right leg	Chapter 3	Yes	0%	0%	0%

1. Regarding the method of WPI calculation, the Medical Assessor said:

   “Right shoulder – 0% WPI -Normal range of motion, no assessable impairment.

   Left shoulder - - 0% WPI - Normal range of motion, no assessable impairment.

   Fracture sternum – 0% WPI - No assessable impairment.

   Thoracic spine DRE I – 0% WPI - Symptoms of injury, no clinical signs.

   Lumbar spine DRE I – 0% WPI - Symptoms of injury, no clinical signs.

   Right hip – 0% WPI - Normal range of motion, no assessable impairment.

   Right leg – 0% WPI

   Normal range of motion, no evidence of radiculopathy.”

2. In 2013, before the accident, the claimant sought opinion/treatment from Dr O’Callaghan, rheumatologist. The insurer has provided a copy of his report to the claimant’s general practitioner (GP) dated 10 April 2013.

3. Dr O’Callaghan reported that the claimant had a history of Raynaud’s phenomenon but this did not seem her difficultly at the time. She had chest pain but this was attributed to activity. The pain was felt on the left side of her chest and described as a heavy pressure feeling. It was said to be sometimes associated with a visual disturbance.

4. On examination the claimant was said to have joint signs of primary generalised osteoarthritis and had rotator cuff signs in the right shoulder. She had lost some supination in her right forearm due to a previous injury and she had subcutaneous nodules overlying the extensor surface of both forearms. She had some restriction of all movement of the lumbar spine and a degree of osteoarthritis in her knees.

5. Dr Callaghan said in a letter dated 31 August 2015 that the claimant’s problems were identified as connective tissue disease, retroperitoneal fibrosis, obstructive airways disease, generalised osteoporosis and depression.

6. Dr Al Maqbali provided a treating report of 26 April 2018 He reported that the claimant had a scan which was done in July 2016 regarding reported disappearance of her retroperitoneal mass. It was said that the claimant reported a history of joint pain, dry eyes and family history of arthritis in her daughter who lives in Queensland. She had a history of a car accident recently 1 January 2018. She was reported as having ended up with a fractured sternum There was reported osteoarthritic changes noticed at the distal interphalangeal joint (DIP) and she had been complaining of back pain.

7. Coonabarabran and Dubbo Base Hospital notes confirm the claimant had a sternal fracture. She remained in hospital until 16 January 2018. The claimant was noted as having osteoarthritic changes in her DIP joints.

8. Clinical notes from East Canberra General Practice note a past history of Scheuermann’s disease and chronic low back pain. A CT scan of 17 May 2018 was referred to as showing severe spondylotic changes of the lumbar spine with spinal canal narrowing.

9. Dr Kenna provided a report of 24 November 2020. He referred to emergency department notes which reported that she was complaining of central chest pain and also right lower abdominal pain. There was also subsequently a complaint of mid-thoracic pain and it was considered that the most likely diagnosis was that of fractured ribs and a fractured sternum, as well as precautionary X-rays pertaining to the cervical spine. Subsequently as a result, also at that time, she was complaining of left shoulder pain. Plain films were taken of the cervical spine which indicated no acute fracture but there was a well demarcated fracture line at the base of the CT which Dr Kenna reported may represent a previous injury or unfused synchondrosis. It was recommended this would require a CT examination.

10. Dr Kenna reported that the claimant first consulted Dr Hamilton in Canberra on 18 January 2018, four days after the accident. Subsequent to that, Dr Kenna said that Dr Hamilton then reviewed the claimant on numerous occasions. He noted at the time of the first examination on 18 January 2018 that her chest was painful (secondary to the fractured sternum). There was extensive seatbelt bruising noted but no other evidence of fractures.

11. The claimant was reported as being tender over the ASIS (anterior superior iliac spine) her right hip region and lower quadrant, involving her lumbar spine and sacro-iliac joint.

12. Dr Kenna noted that the claimant then rested up for several weeks and was reviewed by Dr Hamilton on 5 March 2018, at which consultation he also noted she was complaining of both right hip and right shoulder pain, with clinical signs indicative of rotator cuff pathology. As a result of such symptoms, she was referred for an ultrasound of the right shoulder, as well as plain film X-ray of the right hip. The right hip X-ray demonstrated osteoarthritis changes with loss of joint space and the ultrasound of her right shoulder dated 22 March 2018 demonstrating supraspinatus and infraspinatus tendinosis with partial-thickness tears and mild subacromial bursitis.

13. From this, Dr Kenna reported that the main complaints were lumbar stiffness as well as complaints of pain pertaining to the right hip and shoulder with movement. As a result, radiological investigations involving ultrasound of the right shoulder and plain film of the right hip were taken. These confirmed degenerative rotator cuff pathology degenerative changes, as well as right hip early signs of osteoarthritis.

14. Dr Kenna also noted that Dr Hamilton referred the claimant for an MRI of her lumbar spine in May 2018. He also referred her to a chiropractor in Queanbeyan, for ongoing management of neck, back pain and headaches. It was noted by Dr Kenna that the claimant also complained of headaches at his consultations but these pre-dated her accident.

15. Dr Kenna reported that the claimant was also referred to a rheumatologist, presumably Dr O’Callaghan, who diagnosed Scheuermann’s disease pertaining to the thoracolumbar spine. Dr Kenna said that this condition would have pre-dated the accident and was long-standing.

16. Dr Kenna noted that in further reviews, there was complaint of ongoing back pain, and on 6 July 2018 in consultation, there were ongoing complaints also pertaining to the right shoulder. The hip complaint further flared over this time.

17. On examination, Dr Kenna concluded that injuries incurred in the accident were:

    (a)    fractured sternum/ with associated soft tissue injuries to the thoracic spine;

    (b)    lumbar spine – right paracentral disc bulge compressing L5 nerve root;

    (c)    lumbar spine-aggravation of pre-existing Scheuermann’s disease and exacerbating spinal canal stenosis;

    (d)    soft tissue injuries to right hip, and

    (e)    soft tissue injuries to right shoulder.

18. Dr Kenna concluded that whilst there was a pre-existing history of retroperitoneal fibrosis, it was to be noted that the claimant’s lower back pain was asymptomatic at the time of the accident and subsequent to the accident, she was left with persistent back and buttock pain which had deteriorated and she had subsequently developed radiculopathy.

19. Dr Kenna said that the claimant has undergone a number of investigations, had moved back to Victoria in the latter part of 2019 and then had further X-rays at that point in time pertaining to the lumbar spine, with the initial X-rays pertaining to the lumbar spine three to four months post-accident by Dr Hamilton.

20. Dr Kenna said that nevertheless, the lumbar spine deteriorated and she had further radiological investigations. Subsequent to that, he said that she had developed full-blown radiculopathy and she had undergone a subsequent CT of the lumbar spine and had two spinal injections, neither of which have proved particularly beneficial.

21. Dr Kenna said that while the claimant had pre-existent conditions such as Scheuermann’s disease pertaining to the lumbar spine, she had never had any previous history of radiculopathy. He considered that the accident per se was a significant contributing factor with regard to onset of such stated symptoms.

22. Dr Kenna assessed WPI as follows:

Body Part or System AMA Guides/ MAA Guidelines References (chapter/ page/table) Permanent (YES/NO) Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident

1	Thoracic spine DRE II	ch3, pgs102-107, AMA4 Tables 7 & 8 MAA Guidelines	Yes	5	0	5
2 	Lumbosacral Spine DRE III	ch3, pgs 102-107, AMA4 Tables 7 & 8 MAA Guidelines	Yes	10	0	10
3	Right shoulder	ch3, pgs 15-73, T 1-34 AMA4 pgs 13-16 (upper extremity) MAA Guidelines	Yes	2	0	2
4	Right hip	Yes	2	0	2

19% WPI

1. Dr Machart saw the claimant for the insurer on 28 April 2020. He said that the history was somewhat unreliable. He confirmed that there were issues of cognitive capacity that were noted on his reading of the medicals. Dr Machart commented that this appeared to be interfering with an accurate history on examination.

2. Dr Machart said that the claimant suffered a fracture of the sternum. This was supported by contemporaneous evidence. Contemporaneous evidence indicated that there was no pain in upper or lower limbs or in the lumbar spine.

3. Documents indicated that there was osteoarthritis affecting the lumbar spine and right shoulder, rotator cuff pathology. Dr Machart was unable to diagnose pathology other than the sternal fracture as related to the motor vehicle accident.

Medical examination

1. The claimant was examined on behalf of the Review Panel by Medical Assessor Couch. His report follows:

   “Ms Ward was examined at the PIC rooms by Medical Assessor Michael Couch on 29 May 2024 over a period of two hours. She attended alone. The examination was somewhat difficult and took longer than usual, mainly because of her poor memory. She said that she had flown from Melbourne to Sydney for this examination. She said that she had stayed overnight ‘nearby’, and her solicitor had arranged transport to the PIC rooms. (Her description was rather vague, and she appeared unable to name exactly where she had stayed the previous night). At the end of the assessment, she seemed to be unsure of where or how she was going next-PIC staff confirmed that arrangements had been made for her safe transfer to the airport.

   Relevant Personal History

   Ms Ward said she grew up in the Melbourne suburb of Footscray. She said that she had always been interested in and been around horses, including training show horses. She said that when she was living on a farm in Queensland, before later moving back to Melbourne to live with her son, she had looked after 50 horses.

   She has three children aged from 50 down, with two sons and one daughter. There are two grandchildren. She said that her husband died by suicide in 1976 when her daughter was only 3 years old, and she had raised the three children alone. At about that time she had worked with a company building caravans.

   Ms Ward gave a rather complex recent family and social history. She explained that some years before the subject accident she had purchased a 300 ha farm in Queensland. She was living there for some time with her daughter Judy, and they apparently looked after up to 50 horses without external help. Ms Ward said that she had to leave the property because ‘she (her daughter) kicked me out that day – took all my money and ran off with her bloke and my grandson’. Ms Ward went on to say that up until the time she left the farm she was still fit and active. She described feeding, mucking out, training and riding horses.

   Ms Ward explained that the subject accident in fact occurred while she was driving alone back from the property in Queensland to live with her single son Darren, in the ACT. (She is apparently now living with him in Melbourne).

   Past Medical History

   Ms Ward said that she was aware that her memory was poor and that her son often commented on this. She said that she had had tests but was not aware of an exact diagnosis.

   She did recall suffering from an autoimmune condition in the past, saying that ‘it is not there now’. She could not recall much about the related hydronephrosis, treated with a stent. She added ‘I went to the gym and changed everything, and I felt better’.

   She said that her driver’s licence had been suspended, stating that it was because of a possible cardiac condition and not because of her poor memory. She said that she was ‘getting it back this Friday’.

   She was asked specifically about musculoskeletal symptoms prior to the accident: she denied any symptoms in the shoulders, back, hips or legs prior to the accident.

   (Assessor’s comment – the above history obtained was sketchy and not considered to be very reliable because of her evident memory problems, but is recorded for completeness).

   History of Subject Accident

   Ms Ward said that on 11 January 2018 she was alone driving her small Holden Barina through New South Wales on her way back from Queensland to stay with her son in the ACT. (She described this day ‘my baddest day ever’). She said that she was proceeding at an estimated 110 kph along the Newell Highway. A large vehicle towing a caravan pulled out in front of her from the left. She recalled saying to herself ‘Jody, God I’m going to die’. She said that she had ‘T-boned’ as the other vehicle and thought the driver had been using their phone. She was wearing a seatbelt and front airbags activated. She remained conscious throughout. She said that nearby truck drivers came to her assistance, and she had to be cut out of the vehicle by emergency services. Her car was towed away and written off.

   History of Symptoms and Treatment Following the Motor Accident

   Ms Ward said she was taken by ambulance to Coonabarabran Hospital. The ambulance officers report stated that they found her sitting in the car complaining of chest pain. They described extrication with removal of the side pillar of the car and using a spinal board. They described extensive damage to the front of the car, but without cabin intrusion. Both airbags had deployed. An off-duty critical care nurse had been on the scene. They described a GCS of 15, shallow breathing due to chest pain, a small laceration on her forehead, and right lower quadrant abdominal pain consistent with a seatbelt mark. They also described complaints of sharp thoracic back pain and sternal pain. The initial assessment was of ‘traumatic chest pain’.

   The discharge referral from Coonabarabran District Hospital Emergency Department described her main symptom as being chest pain. On secondary survey:

   ‘Small graze on forehead with bruising, no tenderness on scalp, no tenderness cervical spine, chest in the left side of chest and very tender over sternum. Abdo soft and non-tender but bruising lower right quadrant from seatbelt and this is tender. Upper limbs, clavicles NAD. Left shoulder not painful but she feels that the pain is deep, and it is hard to move. Shoulder/elbow/wrist/fingers NAD/grazes left wrist and right elbow. LL hip/knees/ankles/feet NAD. Unable to log roll whilst pain in sternum but ambo report pain in mid thoracic region before extraction’.

   Imaging performed at Coonabarabran Hospital included:

   ‘X-ray cervical spine: no acute fracture or dislocation is seen. The well demarcated fracture line at the base of C2 may represent a previous injury or unfused synchondrosis. This may be further evaluated with a CT examination.

   X-ray chest: the lungs are well aerated and clear. X-ray thoracic spine: mild scoliosis to the thoracic spine is seen. No acute fracture is demonstrated’.

   Ms Ward was discharged from Coonabarabran Hospital Emergency Department later the same day. The available notes do not specifically state that she was transferred to Dubbo Base Hospital, but this presumably occurred. A discharge letter from Dubbo Base Hospital describes admission on 14 January 2018 and discharge on 16 January 2018.

   The discharge letter from Dubbo Base Hospital erroneously stated that her car had hit a tree –

   ‘Her only injury was a displaced fracture of the sternum, which is for non-operative management. She was commended on patient-controlled analgesia with good effect, and was given an oral pain relief regimen as described below for discharge. On discharge, she was mobilising independently and able to comply with deep breathing and coughing. She was discharged on 16 January 2018 for follow up by a GP in Canberra. She was prescribed paracetamol, naproxen, pantoprazole (while on naproxen), Targin and tapentadol (Palexia) for seven days’.

   Further imaging performed included CT of chest, abdomen and pelvis. These were reported to show a displaced fracture through the upper body of the sternum but no other fractures and no internal injuries. CT of the brain and cervical spine were reported.

   ‘CT brain: the ventricles and subarachnoid spaces are in keeping with the patient’s age. No intra or extra axial haemorrhage or collection is seen. There is no intracranial mass lesion. There is a 10 mm diameter extra axial lesion overlying the left frontal lobe which is suggestive of a small meningioma. There is no mass effect or midline shift. There is no skull fracture.

   CT cervical spine: there is no prevertebral soft tissue swelling. No fracture is demonstrated. No bony lesion. There is moderate to severe facet joint arthropathy throughout the cervical spine. There are multilevel posterior disc osteophyte complexes most marked at C5/6 and C4/5. At these levels there is moderate canal stenosis and severe bilateral foraminal narrowing’.

   Ms Ward at this reassessment in fact stated that she had been an inpatient at Coonabarabran Hospital for two days – it would appear that this was in fact at Dubbo Base Hospital. She said that her son who was living in the ACT came and took her home there. She recalled going to ‘lots of hospitals – nobody could get that out of my leg there – it’s stiff there – I think I’ll cut it off’.

   The claimant’s ‘PIC review complete application’ of 273 pages lists from pages 155-160 ‘Canberra Hospital notes’ – in fact these are a duplicate of the ambulance officers’ records from the day of the accident.

   Records have been seen from Dr Nick Hamilton of East Canberra General Practice, with attendances recorded between 26/5/2016 and 20/8/2019. These entries with further comments are detailed in a letter dated 11/11/2019 from Dr Hamilton to her solicitors.

   26 May 2016: This was probably first attendance, after moving from Queensland to stay with her son Darren in Canberra. History of retroperitoneal fibrosis, treated by rheumatologist from Mater in Brisbane. On Fentanyl patches (for ‘widespread pain’-presumably related to auto-immune condition). Poor memory noted.

   9 June 2016: stopped Methotrexate (from previous rheumatologist). Neck pain and recurrent UTI’s. Cognitive screening said to ‘indicate no significant cognitive impairment’.

   24 June 2016: dizziness and nausea.

   28 July 2016: attended for COPD. On Fentanyl patches 12mcg/hr.

   30 August 2016: difficulties with daughter, low mood.

   There is no mention of low back pain or sciatica here.

   18 January 2018: ‘History: debriefed regarding MVA, was nauseated and urinating frequently yesterday but this has settled. Off all medication, chest painful and some tenderness over ASIS, discussed CT result and ?meningioma. Examination: tender ASIS with extensive seatbelt bruising but no evidence of fracture ...’. There was a note about headaches a few weeks prior to the accident and her blood pressure was noted to be elevated-for follow-up.

   5 March 2018: ‘discussed results of MRI, still getting some headaches – might review with chiro again. Questions regarding difficulties finding words on occasion. Discussed past concussions, cognitive decline and options for investigation/interventions. Also getting ongoing R head pain and some R shoulder pain’. On examination normal gait was noted. There was normal range of movement in the right shoulder but pain on abduction beyond 100 degrees and pain with SST testing. Ultrasound of right shoulder and x-ray of right hip were requested.

   4 April 2018: Dr Hamilton recommended physiotherapy and simple analgesics for both hip and shoulder.

   1 May 2018: Ms Ward had seen a rheumatologist in relation to her autoimmune condition and was on a weaning dose of Prednisone. There was no specific mention of musculoskeletal symptoms but mention of conflict with her daughter. Blood pressure medication was changed as it was still elevated.

   22 May 2018: ‘Seeing Elise Wilcocks chiropractor, in Queanbeyan for neck, back and headaches, found first session very helpful and headaches improved, feels breathing better also, has started at gym ...’.

   Subsequent entries later in 2018 and 2019 are in relation to other conditions, particularly obstructive lung disease, with no further mention of musculoskeletal symptoms, except: 20 August 2019: ‘... wants to keep seeing chiropractor for neck pain’.

   In the same letter Dr Hamilton summarised as follows:

   ‘Your diagnosis of my client’s condition, and the facts on which your diagnosis is based

   From my initial assessment on 18/01/2018, together with the discharge summary from Dubbo Base Hospital dated 16/01/2018, my diagnosis of Ms Ward’s injuries was a displaced fracture of her sternum and bruising over her anterior pelvis. She reported headaches pre-dating the MVA and I organised an MRI of her brain on 18/01/2018 given the incidental finding of a meningioma on her trauma series of CT scans at Dubbo Hospital.

   Ms Ward continued to have intermittent pain in her right shoulder region and right hip region subsequent to the accident and she had some clinical evidence of supraspinatus tendon involvement on provocative testing on 5/3/2018. I referred her for an ultrasound examination of her right shoulder on this date together with a hip XR of her right side.

   The hip Xray report dated 22/03/2018 demonstrated osteoarthritic change in the hip joint with loss of joint space. The ultrasound of Ms Ward’s right shoulder dated 22/03/2018 demonstrated supraspinatus and infraspinatus tendinosis, together with intermediate grade anterior and posterior supraspinatus partial thickness tears and mild subacromial bursitis. I expect the findings on her imaging tests are unrelated to her motor vehicle accident in January 2018.

   Ms Ward also complained of headaches at our consultation 05/03/2018 however as previously mentioned, these pre-dated her accident.

   Details of treatment provided to date

   Ms Ward was recommended to undertake conservative management for her sternal fracture by Dubbo Base Hospital. At my initial consultation subsequent to her accident, I assessed her pain as adequately controlled without analgesia and given issues with opiate medication previously, suggested she was better to avoid such medication at that time.

   I recommended physiotherapy treatment for Ms Ward at my consultation with her on 04/04/2018 with regard to her persistent hip and shoulder pain. I gather Ms Ward elected to see a chiropractor Elise Wilcocks for treatment of her neck, back and headaches. I don not have any record regarding what treatment was provided, however at my consultation 22/05/2018, Ms Ward reported improvement in her symptoms with this treatment. Ms Ward also commenced gymnasium attendance as noted in my consultation entry of 22/05/2018 which formed part of her overall treatment’.

   The last attendance at East Canberra General Practice was dated 20 August 2019. Records have been seen from Croydon Medical Centre (Dr Joon Win Tan and colleagues). The first attendance was on 11 September 2019 and most recent on 21 August 2024. On 11 September 2019 Dr Tan noted that she was a new patient with a complex past history. She presented with SVT (superficial venous thrombosis) of the left inner calf which she related to driving six hours from the ACT two weeks earlier. Dr Tan was concerned to exclude deep vein thrombosis (DVT).

   One week later on 18 September 2019 he mentioned a hospital discharge summary with a pulmonary embolus in the left lung. He also recorded:

   ‘Feeling depressed, for years, recently worse. Jan 2018 high speed accident at 110 kmph. Since then has been feeling down, ongoing disagreement with daughter resulting in very low self-esteem, her chronic illnesses and pain also affect her mood.

   Poor motivation, affecting domestic ADLS. Very poor sleep three hours a night premature awakening. Has frequent thoughts of dying, some suicidal ideation: ramming self into tree whilst driving. Never had any previous attempt’.

   She was treated with an oral anticoagulant DOAC for the previous pulmonary embolus and was subsequently referred to a cardiologist for possible cardiac problems. The first mention of musculoskeletal symptoms from the subject accident: ‘... three hip and back pain – since car accident one year ago. – Recently worse. – Radiating down right back of leg to knee level. Plan: Lyrica as NSAID contraindicated for her heart condition’. On examination ‘slump test positive on right, equivocal on left. Reflexes present, normal bilat, midline not tender. Slightly tender to right SIJ. Reason for contact: sciatica’.

   Subsequent attendances in late 2019 were for COPD (chronic obstructive pulmonary disease).

   On 24 January 2020 she attended complaining of back pain: actions: diagnostic imaging was requested: CT – spine – lumbar right facet joint L4/5 and/or L5/S1 cortisone injection.

   On 29 January 2020 she again attended Dr Tan with right-sided back pain with radiculopathy and review of her COPD. Subsequent attendances during 2020 describe quite severe shortness of breath with her COPD and various changes of medication. Right-sided sciatica was again mentioned in July 2020 and Dr Tan mentioned referral to a neurosurgeon as well as possible spinal injection.

   On 29 July 2020 Dr Tan recorded:

   ‘Back and R hip pain – some improvement from cortisone inj – discussed the legal aspects. The QBE report from ortho surgeon was requested by the other party – her most bothersome symptoms in her right back and hip. In fact her hip is feeling better with spinal inj ? or related to radiculopathy? Hip XR abnormal in recent past – after discussion we decide to refer to neurosurgeon – can later go for separate ortho opinion re shoulder and hip and ribs if necessary’.

   Subsequent entries in late 2020 again document low back pain and right lower limb radicular symptoms.

   During 2020, 2021 and 2022 there is mention of use of various transdermal opiate patches for back pain control.

   In 2023 a stress echocardiogram was planned because of chest tightness on exertion, to exclude ischaemic heart disease.

   13 June 2023: ‘Unhappy that driver’s licence taken away, awaiting CDAMS (Victoria Cognitive Dementia and Memory Service) – hospital referred. Also await outpatient cardiology and Resp’.

   On 19 August 2023: ‘Need referral to CDAMS, to do dementia bloods first’.

   In September 2023 there was mention of physiotherapy (no specific indication documented).

   12 December 2023: ‘She continues to have severe neck pain and it ‘clicks’ with every direction. It is painful even without movement but it’s worse at extension RAD at the occiput, improves a bit with a contour head pillow. There is a possibility of minor right cervical radiculopathy but the symptoms seem to be more peripheral, i.e., ulnar territory rather than central. She has had a lot of different scans and I am not keen to subject to another neck MRI – for physio input’.

   Ms Ward was asked more about her further treatment from Dr Tan in Croydon. When asked if she had seen any specialists, she said she had not seen any in relation to injuries in the accident. She further explained that she had moved from the ACT to Melbourne to live with her youngest son, Clinton for a while. Since then her older son, Darren, had apparently moved back to Melbourne for health reasons and she was now living with him. I asked her if any doctors had suggested that she had had a stroke. She said that some doctors had suspected this but that three months earlier she had been told that this was not the case.

   Current Symptoms

   Ms Ward was asked what part of her body troubled her most – she then stood up and pointed quite accurately to the lumbosacral spine, right groin, left hip and posterolateral thigh and calf. She denied pain in the right foot or toes, but said that if she lifts her right leg she experiences pins and needles in her right foot and toes – she demonstrated this to the Assessor.

   Ms Ward went onto say that she had struck her forehead in the crash – possible on the airbag. (An abrasion and bruising were noted at Coonabarabran Hospital). She mentioned a sore neck but did not give further details.

   When asked about her shoulders she replied, ‘only this one’, putting her left hand on the right glenohumeral joint. Pain is intermittent. She described a quite good range of movement and spontaneously elevated the right arm to approximately 160 degrees. She denied symptoms in the left shoulder, spontaneously demonstrating a full active range of movement (AROM).

   Noting that a soft tissue injury of the thoracic spine had been referred to Assessor Woo in 2022, she was asked about this. She denied any separate back pain in the thoracic area. When mentioning this she put her hand lower down on the lumbosacral area. For clarification, I put her hand further up in the thoracic area and she denied any pain there. She also mentioned slight vague anterior chest pain.

   Present Activities

   As mentioned above, Ms Ward said that she had been living with her oldest son, Darren, for two or three years. He apparently works intermittently. She explained, ‘My son is a bit stupid-he won’t do nothing’. Apparently, he often gets up in the afternoon, spends most of his time on his computer, and goes to bed very late. She said that she does most of the housework. She was asked what she did about meals. She said that she would often have an apple and toast for breakfast and not have lunch. When asked about what she had for dinner she replied, ‘Whatever I do’. She said that she did heat some preprepared frozen meals in the microwave and does not cook much.

   She was asked about shopping. She said that her son Darren sometimes takes her shopping. She is able to push the trolley. She does not get out of the house every day, stating that she was currently not allowed to drive. She did describe doing some cleaning and washing/mopping floors, cleaning the bathroom and doing her own laundry only. She denied difficulty with self-care. She was asked if she and her son received any domestic assistance and she said that he would not allow it – from her description it seemed that her son Darren is probably a hoarder.

   Present Treatment

   Ms Ward denied having any current specific treatment for any symptoms which she related to the car accident. She does continue to attend Dr Tan. She denied taking medication such as Paracetamol or Nurofen, saying she preferred to avoid it. (Referring to Dr Tan’s records, the last mention of analgesic prescription appears to have been for Buprenorphine patches in 2022, with cessation because of nausea and constipation, and for Gabapentin (Neurontin) in November 2022).

   She recalled having two lots of injections to her lumbar spine – she said that one helped for two or three weeks. On further questioning she could not recall if this was more beneficial for her leg or low back pain. She said that surgery had not been suggested for any of her injuries. She recalled having some physiotherapy earlier but not recently. She does not apply any local application such as Dencorub, commenting that she had no-one to put it on for her.

   Lifestyle Factors

   Ms Ward denied drinking any alcohol for many years. She smokes about four cigarettes per day.

   Physical Examination

   Ms Ward presented as a moderately obese 76-year-old woman with medium length, greying straight hair. Height was 169 cm and weight 103 kg, giving a BMI of 36 (approximately 30 kg above the healthy weight range). She walked into the examination room slowly, with some apparent difficulty and a markedly asymmetric gait, leaning to the left. She presented in a very straightforward manner but clearly had markedly impaired memory. She appeared to also have slight dysarthria and dysphasia – for example she would frequently have difficulty finding words and instead say ‘this one’.

   During the physical examination she showed excellent effort and gave the impression of being someone who had been strong and used to hard physical work in the past. She was able to sit during the prolonged interview and stood up during the interview to point to the location of back pain. She spontaneously demonstrated active range of movement in both shoulders when discussing possible shoulder symptoms. (Although her presentation suggested that she might have had a previous stroke or strokes, no facial weakness or asymmetry was noted).

   She was slightly slow undressing herself and redressing afterwards, but could do this unaided. She was able to remove cardigan, sneakers, socks and trousers as needed for examination.

   Cervical spine

   There was a moderate tendency to forward protrusion of the head and neck (‘poke neck’). On palpation there was no significant tenderness over the cervical spine. Both trapezius muscles were moderately tense and equally so, but not significantly tender to palpation. Flexion and extension were both full. Rotation was full bilaterally, although she complained of slight neck pain on full rotation to the right. Lateral flexion was almost full bilaterally and symmetrical. (Thus, there was no dysmetria or muscle guarding). She was not describing non-verifiable radicular complaints in the upper limbs. As can be seen below under ‘upper extremities’ there were no objective signs of cervical radiculopathy.

   Chest

   Ms Ward reported moderate tenderness to palpation over the mid-sternum.

   Thoracic spine

   There was a slight smooth thoracic kyphosis. In addition, she reports marked tenderness to palpation over the mid thoracic spine and approximately T6/7 and there was an unusually prominent spinous process at this level suggesting there might be a more local kyphosis in the mid thoracic spine. Spinal rotation (which mainly occurs in the thoracic spine) was tested with Ms Ward seated to stabilise the pelvis. She showed an excellent effort, with a very full rotation to the left of 60 degrees, and a normal but slightly lesser rotation to the right at 50 degrees. She denied any thoracic back pain or pain around the chest during these movements and the slight asymmetry was not considered to be significant. She was not describing any non-verifiable radicular complaints in relation to the thoracic spine.

   Lumbosacral spine

   On palpation with her lying prone she reported moderate tenderness over the midline of the lumbosacral spine and to both sides of the midline – more marked on the right than the left. There was no tenderness reported distally over the sacrum or sacroiliac joints (SIJ’s).

   AROM of the lumbosacral spine was tested with Ms Ward standing with knees straight. Flexion was full, able to reach her fingertips to the mid shin with smooth lumbar movement. In contrast extension was only half of normal and reported as more difficult than flexion. Lateral flexion was he Assessor tested for possible lumbar paraspinal muscle guarding or spasm by palpating the lumbar paraspinal muscles while Ms Ward slowly moved her bodyweight from one foot to the other. Because of poor balance she had difficulty balancing on either foot, but when she took most weight on either side the ipsilateral muscles appeared to relax bilaterally, suggesting no spasm. (Thus, the main finding of the lumbar spine was dysmetria, with extension specifically restricted. Neurological findings in the lower limbs are detailed below.

   Upper extremities

   The skin of her hands (and elsewhere on the body) was very dry. (She commented that ‘everybody says I’m a snake!’ There were no callouses-consistent with her history of limited recent physical work. Grip strength was strong and equal bilaterally. There were marked Heberden’s nodes over the DIP joints of all fingers, but she denied pain in these joints.

   The right (dominant side) upper arm measured 38 cm and the left also measured 38 cm. The right forearm measured 27 cm and left 26 cm. The only abnormality noted in either elbow or wrist was reduced supination, on the right at 60 degrees compared with 90 degrees on the left – Ms Ward described a fracture in her right forearm as a child – she thought she had been hit by a car.

   Biceps, triceps and brachioradialis reflexes were normal and symmetrical. There was no detectable muscle weakness in either upper limb and light touch sensation was preserved bilaterally.

   In the shoulders the left was not tender but on the right she reported slight tenderness laterally over the glenohumeral joint. There was no obvious periscapular muscle wasting on either side.

   Ms Ward showed excellent effort demonstrating AROM of the shoulders as tabulated (measured with a goniometer, with repetition).

Right	Left
Flexion	60°	60°
Extension	50°	60°
Abduction	180°	170°
Adduction	20°	30°
External rotation	90°	90°
Internal rotation	60°	70°

Ms Ward described some pain in the region of the glenohumeral joint at about 70 degrees of right shoulder abduction, and also at the limits of right shoulder internal rotation. Power was normal bilaterally – when noting this Ms Ward confirmed that she used to be strong and used to physical work. Impingement signs were negative bilaterally.

Lower extremities

Measured 10 cm above the patella both thighs measured 57 cm in circumference. The right calf measured 40 cm and the left 39 cm. Knee jerks were normal and symmetrical. The left ankle jerk was somewhat depressed but definitely present, whereas the right ankle jerk could not be obtained even with reinforcement (by strong hand gripping).

Power of all muscle groups in the left lower limb was excellent, including extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots). There appeared to be generalised weakness of all muscle groups in the right lower limb, including about the ankle, hip and knee. Power of right extensor hallucis longus was graded at 4/5 and right ankle eversion was very weak (4-/5).

The right foot was noted to be slightly cooler than the left. Capillary refilling after pressure blanching was slow in both feet. Both popliteal pulses were present and symmetrical. The left dorsalis pedis was palpable but the right could not be felt. Neither posterior tibial pulses were palpable. (These findings suggest significant peripheral vascular disease, possibly affecting the right lower limb more than the left).

Light touch sensation was preserved in both feet but reported as more easily felt on the left than the right. Pinprick was present in the left foot but described as blunt over most of the right lower limb.(When the right lower limb was being examined Ms Ward commented that ‘this one’ (meaning the right foot) ‘does nothing!’.

Straight leg raising tested supine was normal on the left at 60 degrees. On the right she could apparently hardly lift the lower limb off the couch actively. With very gentle passive assistance (with her agreement) to 30 degrees she reported marked pain, which became worse with sciatic stretching (by passive ankle dorsiflexion). (This was considered to be a positive sciatic stretch test indicating positive neural tension).

As noted above, gait was slow and markedly abnormal, with a tendency to lean to the left. She was completely unable to stand to attention with eyes closed (Romberg’s test) or perform a tandem walk (walking heel to toe in a straight line). AROM of the hips was measured with a goniometer as tabulated.

Right	Left
Flexion	60°	100°
Extension	0°	0°
Abduction	30°	40°
Adduction	20°	30°
External rotation	30°	30°
Internal rotation	30°	50°

Brief cognitive assessment

Full MMS was not performed. She was able to correctly name the date but not the season. She named the year as 2070. When asked about her current location she replied, ‘I haven’t been here’. When asked about the current prime minister, she replied ‘Don’t tell me about him-idiot!’. She could not say what party the prime minister belonged to. She made no attempt at extracting 7 serially from 100. She commented: ‘No I’ve been like this all the time. I know I’ve got ...’.

Further GP Records

Records have been seen from Zone Medical Centre Underwood Queensland, Dr Al-Hashemy with notes of attendances from 28 October 2015 until 2 December 2018.

28 October 2015: ‘Reason for contact: pain management/review’. No further details were given.

6 November 2015: ‘Brought in by her daughter and her son-in-law. Family meeting about her new behaviour and concern about her health. Meeting starting at 1400-1510. Washed both ears twice one by the nurse then by me. Pt felt better after. Results discussed. Pain management reviewed’.

Various investigations performed are listed and she was prescribed Fentanyl (a strong opiate analgesic) patches – the exact indication is not recorded.

22 November 2015 she was brought in by her daughter complaining of three days tinnitus, weakness to the right side of the body, general weakness and insomnia. Detailed neurological examination appeared to have been normal.

In March 2017 she was said to have ceased using Fentanyl patches ‘reason for cessation – completed without problems’. (Again, the exact source of pain was not mentioned).

There were various attendances for COPD and other conditions. There is no record of attendance between 29 November 2017 and 30 September 2018 and no specific mention of musculoskeletal symptoms until then, although several mentions of strong analgesic prescription as detailed above.

30 September 2018: ‘Hit by a car 14/01/2018 ... depressed hip pain’.

17 October 2018 there was further mention of the subject motor vehicle accident, admission to Dubbo Base Hospital and a fractured sternum. It was noted that she had been seeing Dr Hamilton in Canberra since then. Dr Al-Hashemy recorded ‘History. Had an MVA eight months ago and now has lower back pain, hip pain and hip weakness’. On examination he noted ‘musculoskeletal: spinal stiffness, knees and hips pain with movement’.

Back pain, insomnia and anxiety are mentioned on 21 October 2018.

Assessment after clinical re-examination and review of all GP records

1.     Ms Ward presented in a very genuine manner and was very cooperative, showing good effort during the examination. It was not possible to obtain a detailed history and chronology of events from her because of her obvious memory loss. There was also a suspicion that she had had a previous stroke or strokes.

2.     Documentation shows that she was involved in a serious high speed frontal crash and that her relatively small car hit a larger vehicle. From the description of the crash, and in particular the ambulance officers’ report, there was clearly the potential for serious injuries.

3.     Contemporaneous documentation from Coonabarabran District Hospital and then Dubbo Base Hospital (where she was admitted for two days) confirm anterior chest pain and an undisplaced fracture of the sternum, an abrasion and bruising on the forehead (probably from an airbag). There was a possible early complaint of left shoulder pain, although examination of the shoulder was said to be normal. Imaging showed no other fractures, degenerative change in the cervical spine and no evidence of internal soft tissue injuries.

4.     Following discharge from hospital she was treated for a few months by Dr Nicholas Hamilton in Canberra. As he stated in his summary letter of 11 November 2019 to her solicitors, she did complain of intermittent pain in the right shoulder and right hip, and he found radiological evidence of osteoarthritis in the right hip two months after the accident, and rotator cuff pathology in the right shoulder at the same time. She was also reporting headaches, but it was noted that these predated the accident. Low back pain appears to have been first mentioned some months after the accident when she attended a GP in Brisbane.

Assessment of body parts originally referred to Assessor Woo

·        Right shoulder. This was not mentioned at Coonabarabran or Dubbo Hospital. Dr Nicholson in Canberra mentioned this, with abnormalities on ultrasound two months after the accident. He considered it probable that these ultrasound changes were unrelated to the accident. Although right shoulder pain was not reported in hospital, given the severity of the crash, the fact that the seatbelt would have been over her right shoulder, the report to Dr Nicholson, and the lack of any previous record of right shoulder pain, the Review Panel considered it more likely than not that she did sustain an injury to the right shoulder in the crash. .

Current examination showed slight painful restriction of internal rotation and a minor painful arc of abduction on the right. The assessment by AROM gives 4% UEI. This converts to 2% WPI

·        Left shoulder. Some symptoms in the left shoulder were mentioned at Coonabarabran Hospital. Ms Ward denied any symptoms in the left shoulder at this examination. There was very minor restriction of flexion, adduction and internal rotation giving 3% UEI, which converts to 2% WPI.

·        The Review Panel notes that the claimant claimed that Assessor Woo had not properly recorded AROM in the shoulders. At the Review Panel re-examination, AROM was carefully measured with a goniometer, and with repetition for consistency.

·        Sternal fracture. This is well-documented. Ms Ward reports minor anterior chest pain and slight tenderness to palpation. With such a healed fracture there is no assessable impairment from the MAG or AMA4.

·        Thoracic spine. There was no contemporaneous documentation of thoracic spine symptoms or injury. Ms Ward definitely denied any symptoms in this area on careful questioning. There was some tenderness over T6/7 but no other abnormal signs. Causation of a thoracic spine injury is in doubt and in any case, this would be assigned to DRE Thoracolumbar Category I, giving 0% WPI.

·        Lumbar spine. There was no mention of a lumbar spine injury or symptoms at either hospital. The first mention by Dr Nicholson (GP in Canberra) was on 22 May 2018- however the claimant had already sought treatment from Elise Wilcocks (chiropractor). Dr Nicholson referred her back to the chiropractor. In his referral of 22 May 2018 he wrote ‘As you know she has experienced headaches and increased back and neck pain since being involved in a car accident earlier in the year’ The Panel requested and received records from the chiropractor and notes that there is no mention of low back pain prior to May 2018

·        At the same time she was attending the Rheuamatology Clinic at The Canberra Hospital for her probable auto-immune condition with retoperitoneal fibrosis. The rheumatologist arranged an MRI of the lumbar spine, performed on 29/5 /2018. This was reported: ‘Clinical History CT SCAN THAT SHOWED L4-5 WHERE THERE IS SEVERE SPINAL CANAL NARROWING (RECEIVED A CALL FROM DR KATHY ASHTON STATING THAT SEVERE STENOSIS AND NEED URGENT MRI) PT HAS BACK PAIN POST MVA (JAN 2018), RADICULOPATHIC, NO URINARY/ BOWEL INVOLVEMENT FOR URGENT MRI)……’

·        MRI was reported to marked degenerative change, with severe canal stenosis at L4/5, disc bulging at L4/5 and L5/S1, and impingement on left L4 nerve root and right L5 nerve root. On 23 July 2018 Dr Perera (Staff Rheumatologist) in a letter to Dr Nicholson mentioned referral to a neurosurgeon (this does not seem to have occurred)

·         The panel re-examination showed positive neural tension in the right lower limb and global weakness, marked weakness about the right ankle, an absent right ankle jerk and some sensory changes in the right lower limb.

·        Right hip. There was no mention of the hip at either Coonabarabran or Dubbo Hospitals. The first mention of hip pain (and hip weakness) was by Dr Al-Hashemy on 17 October 2018 (nine months after the accident). Imaging showed degenerative change with joint space narrowing in the right hip. The present examination showed painful restriction of AROM in the right hip consistent with osteoarthritis. Applying the tabulated AROM to Table 40 of AMA4, the worst impairment is related to flexion of 60 degrees which is classed as ‘moderate impairment’, giving 4% WPI or 10% LEI. However, there is no evidence that this is related to the accident.

·        Right leg. There was no contemporaneous documentation of a separate injury to the right leg. Dr Nicholson in Canberra documented superficial thrombophlebitis and she was apparently also found to have had a pulmonary embolus. Current examination showed evidence of peripheral vascular disease bilaterally, probably worse on the right. There is no evidence that she sustained an injury to the right lower limb in the subject accident.

Examination of the lower limbs was complicated by the suspicion that she may have had a previous stroke or strokes. (She mentioned the possibility but denied this). There was also evidence of peripheral vascular disease, possiblyworse in the right lower limb. Gait was very abnormal and asymmetrical and balance very poor. The signs were consistent with right L5 radiculopathy, which also correlates with the MRI findings.”

1. The Review Panel adopts the report of Medical Assessor Couch.

Causation/Reasons

The Guidelines

1. The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]

   [1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.

   Clause 6.6 provides:

   “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:

   (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   (b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”

   Clause 6.7 provides:

   “6.7 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.”

2. The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment. Concerning that issue, the Review Panel must determine causation by the application of legal notion of causation.

3. Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.

96.Section 5D of the CLA provides:

"General principles

(1)     A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

1. There are two elements to address when assessing causation under s 5D(1):

   "factual causation";[2] and

   "scope of liability".[3]

   [2] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?

   [3] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].

2. Assessing "factual causation" and "scope of liability" involves making value judgments.[4]

   [4] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.

3. In the accident involving the claimant, her car was collided into by another car which entered a country highway from a side road when the claimant was travelling at about 100kmph. The impact would have been sudden, and with some degree of force.

4. In accordance with cls 6.6 and 6.7 of the Guidelines, the Review Panel should make a non-medical informed judgment as to whether it was likely that the motor accident caused or contributed to the claimants injuries question.

5. The claimant was involved in a sudden, unexpected collision involving her car which was travelling on a country highway at approximately 100kmph. The insured car was travelling at an unknown speed from a side road, and entering onto the highway.

6. The Review Panel must ask itself whether the accident materially contributed to the claimant’s physical injuries as referred to it by the Commission.

7. The Review Panel is satisfied that the injury to the claimant’s sternum did arise as a result of the accident. This was immediately reported by the claimant following the accident and treated. The fracture has however healed.

8. Regarding the injury to the claimant’s right shoulder, this was not noted by the claimant to the attending ambulance officers. There is also no record of this injury at either Coonabarabran and also Dubbo Hospitals. The claimant mentioned this to her GP, Dr Nicholson, in Canberra and abnormalities on ultrasound were reported two months post accident. Dr Nicholson did not consider it probable that these ultrasound abnormalities were unrelated to the accident. The Review Panel considers that in a high speed, sudden stop collision, it would not be unreasonable for the claimant’s right shoulder to suffer a seatbelt injury. This is so even though it was not immediately reported by the claimant. It is, on the assessment of the Review Panel, likely that on the balance of probabilities, the accident has materially contributed to this injury to the claimant. The Review Panel is therefore satisfied that the claimant has a 2% WPI disability of the right shoulder.

9. Regarding the claimant’s left shoulder, there is evidence of mention at Coonabarabran Hospital of injury to this body area. The claimant however denied any symptoms in her left shoulder at the time of examination by Medical Assessor Couch who found a very minor restriction of flexion, adduction and internal rotation when he examined the claimant. He assessed this at 2% WPI. While the claimant denied any ongoing symptoms, the Review Panel accepts that she might have suffered an injury to her left shoulder on the balance of probabilities. Given the nature of the accident, it is the finding of the Review Panel that the accident has materially contributed to this disability.

10. With the claimant’s lumbar spine, the claimant did not make any complaint about injury or symptoms when she was treated by the ambulance officers and thereafter treated at Coonabarabran and Dubbo Hospitals. There is no mention in any of the medical records about any complaint of injury for this area until the claimant returned to see her GP in Brisbane. The claimant has previously had a history of Scheuermann’s disease and chronic low back pain. Following the accident the claimant did complain of the thoracic pain but this was considered to be the diagnosis of fractured ribs and a displaced fracture of the sternum. In light of the claimants pre-existing history of low back symptoms and the fact that she made no complaint about pain in this area until several months post-accident, the Review Panel does not consider that the accident has, on the balance of probabilities, materially contributed to this disability. Dr Kenna reached a different conclusion. The Panel notes this, but considers that the balance of factual evidence does not support causation for a lumbar spine injury. It also notes that, although Ms Ward cooperated to the best of her ability in giving her history to Medical Assessor Couch, her memory is very poor.

11. Regarding the claimant’s thoracic spine, she did make complaint of mid thoracic pain at hospital but this was more to do with her sternum and ribs. To Medical Assessor Couch, on careful questioning, the claimant denied any symptoms in this area. The Review Panel is not satisfied that the accident has materially contributed to an injury to the claimant’s thoracic spine but in any event, notes from the examination by Medical Assessor Couch that the claimant would be assigned an assessment of a DRE Thoracolumbar Category I giving 0% WPI.

1. With the claimant’s right hip, she did not think any complaint about this area of injury either at Coonabarabran or Dubbo Hospitals. She first mentioned hip pain and hip weakness nine months following the accident, on 17 October 2018. On examination the claimant did have limitation of movement and was assessed as 4% WPI in the event causation was established. Imaging showed degenerative change with joint space narrowing in the right hip. The Review Panel however is not satisfied that the accident has materially contributed to an injury to the claimant’s right hip on the balance of probabilities. This was a complaint made nine months after the accident and on the assessment of the Review Panel, if she had suffered an injury to this area as a result of the accident, she would have felt pain much sooner in time after the accident rather than the time of nine months later when she first made a complaint. Such a complaint is too remote to the time of the accident on the assessment of the Review Panel.

2. Concerning an injury to the claimant’s right leg in the accident, the Review Panel notes that there was no contemporaneous complaint or documentation of the separate injury to the right leg. Whilst Dr Nicholson documented superficial thrombophlebitis and a pulmonary embolus and examination by Medical Assessor Couch evidenced peripheral vascular disease bilaterally, there was no evidence that the claimant suffered an injury to her right leg in the accident. In any event, this injury did not give rise to a whole person impairment assessment.

Conclusion

1. The Review Panel is satisfied that the accident and impact has had a more than negligible effect on, and contributed to the following the injuries suffered by the claimant:

   (a)    the claimant’s sternum;

   (b)    the claimant’s right shoulder, and

   (c)    the claimant’s left shoulder.

2. The Review Panel assesses the claimant’s total WPI as 4%.

3. The Review Panel is not satisfied that the following injuries arose as a result of the accident:

   (a)    thoracic spine – soft tissue injury;

   (b)    lumbar spine – soft tissue injury;

   (c)    right hip – soft tissue injury, and

   (d)    right leg – soft tissue injury.

Determination

1. The Review Panel revokes the certificate of Medical Assessor Woo dated 15 December 2022.

2. The Review Panel finds that the claimant has suffered the following injuries caused by the accident:

   (a)    the claimant’s sternum;

   (b)    the claimant’s right shoulder, and

   (c)    the claimant’s left shoulder.

3. The Review Panel assesses the claimant’s total WPI as 4%.