Wilder v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Wilder v QBE Insurance (Australia) Limited [2025] NSWPICMP 103
CLAIMANT:	Vicki Louise Wilder
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	19 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for whole person impairment (WPI) assessment and claimant’s application for review under section 7.26; claimant passenger in vehicle hit from behind, pushed into intersection with second collision, and two impacts from another vehicle; claimant alleged injuries to neck, back, chest, and ribs; back injury included allegation of three thoracic fractures with compression and loss of height; Medical Assessor (MA) determined WPI at 5%; claimant re-examined cervical and lumbar spines at 0%; chest and rib injury had resolved and resulted in no impairment; insurer relied on radiological expert who diagnosed one definite fractured vertebra, a second possibly fractured, and the third not fractured; digital access to thoracic imaging provided to Review Panel and images studied; MA’s satisfied imaging showed single T3 fracture but that there were no fractures of T1 and T2; compression measured at 16.66% loss of height which attracts a DRE II 5% WPI finding; Held – certificate of MA confirmed; discussion of application of Medical Assessment Guidelines and clause 6.23 (some injuries do not attract impairment), table 6.7 (single fracture vs multilevel structural compromise), and spinal impairment in particular clause 6.148 (measurement of vertebral body compression) of the Motor Accident Guidelines.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Kuru dated 15 March 2024. 2. Certifies that the degree of the claimant’s permanent impairment resulting from the injuries caused by the motor accident on 14 September 2020 is 5% which is not greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Vicki Wilder was involved in a motor accident on 14 September 2020. Ms Wilder was 60 at the time of the accident. She was a passenger in a vehicle driven by her mother. The vehicle was stationary at an intersection when a semi-trailer crashed into the back of the car pushing it into the intersection and into the path of an oncoming semi-trailer which also collided with the claimant’s mother’s vehicle.
Ms Wilder says she injured her chest, ribs, cervical, thoracic and lumbar spine in the accident and made a claim for statutory benefits[1] and then damages[2] against QBE, the third-party insurer of the vehicle she says caused her accident.
[1] Dated 1 October 2020.
[2] Dated 3 August 2022.
A medical dispute about the degree of Ms Wilder’s whole person impairment (WPI) arose in connection with that claim and QBE referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 15 March 2024, Medical Assessor Kuru determined that Ms Wilder had a WPI of 5%. As she was dissatisfied with that outcome, Ms Wilder lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 30 July 2024, the President’s delegate determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 2 August 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

General provisions

Ms Wilder’s damages claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be determined by a Medical Assessor.[4]
[4] See s 4.12 of the MAI Act.

Dispute Resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Kuru’s, further medical assessments and the review of medical assessments by this Panel[5].
[5] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26(3A)).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (the AMA 4 Guides).
[6] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.

ASSESSMENT UNDER REVIEW

Medical Assessor Kuru examined the claimant on 15 March 2024 and issued his certificate the same day.
The Medical Assessor confirms at [2] that he was asked to assess the following injuries:
(a)    chest - lower lateral chest injury;
(b)    cervical spine - neck injury;
(c)    thoracic spine - upper thoracic spine injury with chronic pain;
(d)    compression fractures to T1, T2 and T3 vertebra;
(e)    lumbar spine - soft tissue injuries to back, and
(f)    ribs - soft tissue injuries to ribs and bruising.
The Medical Assessor noted at [3] the claimant’s reliance on a report from Dr Machart, orthopaedic surgeon. At [4] he notes the insurer relies on the opinion of Dr Korber, radiologist who stated that there was only one fracture at T3 and no evidence of a fracture at T1 or T2.
Medical Assessor Kuru has a history of the car accident and the claimant’s transfer by ambulance to hospital and an overnight stay. The claimant reported immediate thoracic pain which has continued. The claimant could no longer ride her horse due to pain. She reported she had no treatment, no medication and that she can walk without restriction.
Medical Assessor Kuru examined the claimant. His findings are limited to the chest, thoracic and lumbar spine but he includes some lower limb findings. He reviewed the radiological images and found a superior end fracture at T3 but no obvious fracture at T1 or T2.
Medical Assessor Kuru found 5% for the single compression fracture in the thoracic spine and soft tissue injuries to the cervical spine and lumbar spine which he assessed at 0%. He cited “page 3/108 table 70” for the three spinal injuries[7] and 0% for the chest citing “page 9 and paragraph 1.23”[8].

ISSUES FOR DETERMINATION

[7] The Panel interprets this as a reference to chapter 3, Table 70 found on page 108 of the AMA 4 Guides.

[8] The Panel interprets this as a reference to paragraph 1.23 of the Motor Accident Permanent Impairment Guidelines made under the Motor Accidents Compensation Act 1999. The equivalent paragraph in the Guidelines under the MAI Act is paragraph 6.23.

Claimant’s submissions

The claimant’s (undated) submissions in support of the application for review[9] say there are four errors made by the Medical Assessor:
(a)    he did not assess all the injuries referred to him (chest, lumbar spine, cervical spine and ribs) and only assessed the thoracic spine. If he did assess those injuries, he did not set out his findings on examination of them;
(b)    he did not consider all the material as his reasons say he did not have Dr Machart’s report or the report of Dr Korber both of which were attached to the claimant’s bundle;
(c)    the insurer provided a copy of a computer disc (the disc) with digital versions of the claimant’s September 2020 scans to the Commission but not to the claimant and the claimant had no opportunity to make submissions or have them reviewed, and
(d)    he did not explain his reasons for the 5% WPI finding of the thoracic spine.
[9] Page 29 of the claimant’s bundle.
The claimant lodged submissions in reply to the insurer’s submissions dated 22 February 2024[10] saying:
(a)    the Medical Assessor is not obliged to adopt an impairment assessment of another practitioner;
(b)    there is a dispute about impairment because the insurer does not concede it;
(c)    the insurer has not recorded the claimant’s complaints at hospital correctly;
(d)    the insurer relied on the disc which has not been provided to the claimant, and
(e)    Dr Korber could not clearly see fractures to T1 and T2 whereas Dr Chu noted fractures to three levels at the time the scans were performed.
[10] Page 21 of the claimant’s bundle.

Insurer’s submissions

In its submissions dated 27 July 2024, the insurer acknowledged that the reports of Drs Machart and Korber were attached to the claimant’s application and it would appear that Medical Assessor Kuru was not given them. The insurer recommended the matter go back to Medical Assessor Kuru as an “incomplete certificate.”
The insurer says the Medical Assessor has “directly and indirectly” referred to each of the listed injuries.
The insurer submits in relation to the disc, that the reasons of the Medical Assessor suggest the claimant brought the radiology to the appointment and says the disc provided to the Commission was the only available copy. The insurer says there is no procedural fairness.
The insurer acknowledges the lack of detail as to which DRE class was chosen but says otherwise it is clear that the DRE method of assessment has been used due to the reference to “page 3 /107 table 70.”

Claimant’s submissions in response

The claimant lodged additional submissions dated 28 July 2024[11] in response to the insurer’s submissions. The claimant:
(a)    says in relation to the insurer’s suggestion the certificate was incomplete, that there is no accidental slip or omission;
(b)    repeats the submission concerning the failure to assess all the injuries;
(c)    notes the Medical Assessor says that the radiological imaging was bought to the examination, but the claimant instructs she did not bring anything with her. The claimant says that the disc with imaging studies was posted to the Commission, and
(d)    in terms of the thoracic spine the Medical Assessor has referred to table 70 which covers many types of impairment, and the Medical Assessor has failed to explain the basis for his 5% WPI assessment.
[11] Page 34 of the claimant’s bundle.

Procedural matters

On 9 August 2024, the Panel issued directions to the parties asking for bundles of the documents they rely on. The claimant’s bundle was due on 30 August 2024 and was uploaded on that date with a letter advising that a medico-legal report from Dr Dixon, orthopaedic surgeon had had been commissioned and would be provided upon receipt.
On 8 October 2024 the report of Dr Dixon was submitted with the application to admit late documents form. The Panel determined at the first teleconference to allow the report into evidence.
The Panel met on 8 October 2024 and reported to the parties on 10 October 2024.
The Panel noted that there was a suggestion made by Dr Korber that the claimant have additional and updated radiology to verify the thoracic fractures and queried whether this had been done.
In relation to the claimed injuries the Panel made the following observations noting the contents of Dr Dixon’s report:
(a)    leaving aside the thoracic spine fractures there does not appear to be a dispute raised by the insurer as to causation of any of the other injuries that had been assessed;
(b)    chest and ribs – it would appear that the claimant may have some continuing symptoms in this area. The Panel noted cls 6.23 and 6.38 of the Motor Accident Guidelines and expressed the preliminary view that there was no current impairment from these injuries;
(c)    hips – Dr Dixon suggests the claimant sustained a contusion injury to both hips in the accident although he did not find an impairment in relation to that injury. The Panel indicated any impairment to the claimant’s hips would not be assessed;
(d)    wrists – Dr Dixon has diagnosed the claimant with de Quervain’s tenosynovitis in both wrists but had not assessed impairment. The Panel queried whether this was alleged to be an injury caused by the accident and if it was, indicated the Panel would not be assessing the claimant’s wrists, and
(e)    occipital headaches with occipital neuralgia – the Panel noted that occipital headaches resulting from an occipital nerve injury causing neuralgia was not referred for assessment and that the Panel would not be assessing an occipital nerve injury.
The Panel suggested Ms Wilder consider whether there should be a further assessment undertaken instead of the claimant pursuing the Review if impairment was alleged to the hips or wrists and resulting from an occipital nerve injury caused by the accident.
The Panel noted the main issue in dispute appeared to be whether the claimant sustained one, two or three compression fractures of her thoracic vertebrae and, leaving aside the issue of causation, asked whether the degree of compression was agreed by the parties.
The Panel advised the parties of the re-examination date and issued directions to the parties for responses to the report and production of radiological images.

Responses from the parties

Claimant’s response

The claimant requested the Panel consider the headaches, neuralgia and development of De Quervain’s tenosynovitis as part of, or consequential to, the spinal injuries noting that “taking that approach, Dr Dixon has assessed the claimant’s cervical spine as giving rise to a WPI of 5%.”
The claimant provided up to date radiology reports (relating to a CT scan of the thoracic spine and an MRI of the lumbar spine from October 2024) and said it was a matter for the Medical Assessors to determine the loss of height in the claimant’s thoracic spine as a result of the compression fracture.

Insurer’s response

The insurer submitted that in the light of the claimant’s approach, the insurer did not wish to make any concessions and that the Review Panel shoulder assess all previously assessed injuries afresh.
The insurer noted the lumbar spine was not included in the original list of injuries to be assessed and the claimant has never amended the application and sought its inclusion and Dr Machart and Dr Dixon have not assessed that injury. The insurer disputes any lumbar spine pathology was caused by the accident.
The insurer submits that as Dr Korber is the only expert to have examined the films and his opinion ought to be accepted. The insurer says that the Panel should undertake the comparison he recommends. The insurer says it is open to the Panel to find no thoracic fracture at all caused by the accident.
The insurer submitted the alleged occipital nerve injury is not assessable by the Panel.

Claimant’s further response

The claimant submitted that a back injury was referred to:
(a)    in the application for medical assessment as injury 3 “soft tissue injury to back and ribs and bruising”;
(b)    the letter accompanying it dated 11 September 2023 lists injuries to the back and ribs;
(c)    a letter to the insurer dated 31 August 2022 refers to injuries to the back, left flank, sternum and ribs, and
(d)    the claimant’s statements refer generally to back pain.
The claimant submits Dr Dixon was provided with the radiological images.
The claimant restates Dr Korber’s opinion in relation to the fractures and says a further report from Dr Korber may be of assistance to the Panel.

Post re-examination procedural matters

The claimant attended a re-examination with Medical Assessor Gibson on 13 December 2024. On 17 December 2024 the Panel met to discuss her re-examination findings. The Panel reported to the parties on 19 December 2024.
The Panel noted:
(a)    one of the issues in this matter is whether the claimant sustained any thoracic fractures and if so, how many;
(b)    radiology performed in Young on the day of the accident reported superior endplate compression fractures at three levels, T1, T2 and T3;
(c)    Dr Korber, a specialist radiologist has provided a report which casts doubt on there being a T1 fracture, confirms the presence of a T3 fracture and expresses his uncertainty about a T2 fracture. He requested updated radiology on the basis that if there are fractures, they would be more visible in the later radiology, and
(d)    the additional radiology was done on 24 October 2024 and reports a single thoracic endplate fracture only at T3.
The Panel advised the parties that Medical Assessor Gibson had accessed the radiological images on the disc and advised it did not appear to indicate there was any thoracic spine radiology from September 2020 and none of the images from October 2024. The Panel noted the images of the thoracic spine included by Doctor Korber in his report could not be found on the disc.
The Panel drew the parties’ attention to the hospital notes recording an April 1999 fall and thoracic spine injury.
The Panel asked the parties if:
(a)    they wished to obtain additional expert evidence;
(b)    whether a link to on-line digital images from September 2020 could be provided;
(c)    whether a link to on-line digital images could be provided in relating to the October 2024 radiology, or
(d)    the Panel should proceed on the information currently available.
The parties responded with a joint letter dated 17 January 2025. That letter appeared to suggest there may have been a second disc with images from October 2024 and the letter gave instructions as to how to manipulate the September 2020 images on the disc to obtain the images that Dr Korber used in his report.
Utilising the instructions provided, the Panel was able to access the September 2020 CT scan images however the Panel still did not have the October 2024 images.
The claimant was asked to consent to the medical members of the Panel contacting the radiological practice to obtain digital access and that permission was given.
Young Diagnostic Imagin provided the Medical Assessors with secure log in details and the Medical Assessors have accessed both the 2020 CT scan images and the 2024 images enabling the Panel to finalise these reasons.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant’s application for statutory benefits was signed and dated 1 October 2020. The claimant describes the accident and identifies her injuries as follows:
“I have compression fractures to T1 to T3 vertebras. I have a lot of pain on my left side (ribs) and also in my chest, ribs area. Psychological effects from the accident.”

The claimant provided a statement dated 3 August 2024[12]. In it, Ms Wilder says:
[12] Page 287 of the claimant’s bundle.
(a)    she was 60 at the time (she is now 63);
(b)    her de facto partner was involved in a motor accident in 2016 and sustained a brain injury and other injuries. He was hospitalised for eight months;
(c)    the claimant developed depression as a result. Her depression and anxiety has returned since her accident;
(d)    Garry had a carer who comes three days a week and on other days the claimant assists him;
(e)    Garry had greyhounds and one of his children took over their care until that child moved out;
(f)    the claimant is a licensed owner, breeder and trainer of greyhounds;
(g)    Garry also kept thoroughbred mares and Ms Wilder participated in dressage which she has not returned to due to pain in her back if she has been riding for a short time;
(h)    she remains as Garry’s carer;
(i)    she made a claim for psychological injuries after Garry’s accident and received a payout but has had no other accidents or claims;
(j)    at the time of the accident, she was well and not taking medications. She felt better but had not fully recovered after Garry’s accident;
(k)    after the accident she observed most of the damage was to her side of the car;
(l)    at first she was OK, but then she started getting stiff and sore and her back started hurting she later saw “bruises all over me;”
(m)     she had trouble moving and was in a lot of pain in her upper back and shoulder and pain in the sternum from her seat belt;
(n)    she had trouble getting dressed or turning her neck and did not driver for a month;
(o)    she is back to driving but not long distances because her back aches;
(p)    her back has improved but she cannot work for long in the garden;
(q)    the pain in her back is between her shoulder blades;
(r)    she can stand comfortably for an hour or two but cannot sit for long periods;
(s)    she is back riding horses, but she does not resolve every day;
(t)    she saw a physio once but didn’t suggest a further appointment;
(u)    she walks the greyhounds every day;
(v)    she has trouble sleeping. She grinds her teeth and clenches her jaw;
(w)   she is more anxious now.
The claimant gave a further statement dated 8 September 2023[13] saying:
[13] Page 293 of the claimant’s bundle.
(a)    she has ongoing back pain. It gets painful if she carries a handbag or does too much;
(b)    if she sits for a while her back gets worse;
(c)    she hangs clothes on the line which causes pain;
(d)    before the accident she used to babysit her grandson once a week, but she cannot do this now as she cannot pick him up;
(e)    when her back gets sore her shoulders get sore;
(f)    cleaners come from iCare;
(g)    she can’t clean the windows or brush her horse, she cannot use her arms above chest height;
(h)    she can drive but is fearful when near trucks;
(i)    she does not ride her horses for fear of further injury;
(j)    she grinds her teeth all the time;
(k)    she cannot sleep without a podcast;
(l)    she is more anxious but has stopped seeing the psychologist but still takes anti-depressants;
(m)     she wants to see an osteopath in Young;
(n)    she does three hair appointments a week now;
(o)    “I am too busy with Garry’s appointments and the greyhounds to work more than that.”

Treating medical records and reports

Pre-accident records

No pre-accident records have been provided by the claimant’s GP however the insurer has provided over 500 pages of notes from Young District Hospital.
At page 369 of the insurer’s bundle in the hospital notes there is an X-ray report from 21 April 1999 which reports:
“In the thoracic region, a few Schmorl’s nodes. A minor central endplate depression is noted. There is minimal lipping of these vertebral body margins in the mid thoracic region.”
Later in the Young hospital records (page 680) on 20 April 1999 is the documentation concerning the admission which led to the above X-ray. The claimant attended after a “fall off horse – chest injury with haemoptysis (coughing up blood from the airways)”. It is said she landed flat on her back and had pain between her shoulder blades.
Later in the nursing notes is this record “thrown off horse landing on back was wearing riding helmet. Complaining of thoracic back pain, rattly in chest, had haemoptysis after being thrown.” The claimant was discharged the next day.

Post-accident records

Ambulance records following the car accident note the claimant was trapped and was complaining of central chest, sternum pain and left sided rib pain. Ms Wilder denied losing consciousness, denied neck pain and had no pain on palpation of the neck.
The claimant attended Young District Hospital after the accident. The discharge summary[14] includes the following information:
[14] Page 80
(a)    the accident occurred at 80 kms per hour;
(b)    the initial secondary survey of the claimant “was notable for significant sternal and left ribs tenderness”;
(c)    the claimant was admitted for further investigations;
(d)    initial CT scans showed no injury, and a further tertiary survey was completed the next day with kidney tenderness and a follow up CT of the abdomen and pelvis was done which also found no further injuries;
(e)    in the progress notes section (page 86) the comment, “complains of lower lateral chest wall pains. Initially no neck pains but on arrival C8 neck pains;
(f)    on examination the claimant was tender at C7, and a collar was applied;
(g)    contact was made with “DW Ortho visiting medical officer at Prince of Wales Hospital (POW) who is covering the spine calls.” The Panel understands that this suggests the claimant was not seen by an orthopaedic surgeon in Young but that, as is the practice in smaller rural hospitals a phone call is made to a specialist elsewhere, in this case the POW hospital;
(h)    minor bruises were noted on the right hip (page 87), and
(i)    when the CT results were back, the collar was taken off and the claimant was admitted overnight.
The first certificate of fitness was completed by Dr Kwan of the Young Hospital on

14 September 2020[15]. Dr Kwan diagnoses “soft tissue injuries to back and ribs” and advised the claimant take analgesia and rest. He certified the claimant unfit to work until

20 September 2020.
[15] Page 251 of the claimant’s bundle.
Dr Larcombe completed the second certificate of fitness on 24 September 2020 diagnosing three compression fractures in the thoracic spine but noting no other injuries. This diagnosis (and absence of mention of other injuries) continues in the other certificates of fitness found in the claimant’s bundle.
Dr Larcombe referred the claimant for physiotherapy on 29 October 2020 referring to the thoracic spine fractures and bruising noting that the claimant “still has some back and flank pain.”
Clinical notes have been produced by Dr Larcombe from March 2021. The claimant is not a frequent attender at her GP and there are some mentions of physical symptoms as well as complaints of increasing anxiety and depression.
On 22 January 2022 Dr Larcombe referred the claimant to Dr Tsai, orthopaedic surgeon at the request of the claimant’s solicitor[16]. The claimant was said to have pain in the thoracic spine and “her pain has greatly settled but she still gets thoracic pain when she has her arms up for extended periods of time, such as driving long distances.”
[16] Page 217 of the claimant’s bundle.
There is no report from Dr Tsai before the Panel.

Radiology

As the hospital in Young did not have the appropriate equipment, the claimant was taken to Young Diagnostic Imaging by Ambulance for a CT of her head, cervical spine and chest with results as follows:
(a)    the brain scan was normal;
(b)    the CT scan of the cervical spine reported no cervical spinal fractures or dislocation, and
(c)    the Chest CT scan reported that no pneumothorax, pneumomediastinum or pleural effusion was seen. Superior endplate subchondral compression fractures were noted at T1, T2 and T3 with loss of vertebral body height by 10 – 20%. It was said, “These are of indeterminate age.” No retroposed fragment were seen and no sternal fracture was demonstrated.
A further CT scan of the cervical and thoracic spine was done on 24 October 2024 which reported:
(a) there was no central canal or foraminal narrowing of the cervical spine, and
(b) “the thoracic spine alignment is normal. Superior endplate compression of T3 is noted, chronic appearing, no acute fracture is seen.”
An MRI of the lumbar spine also performed on 24 October 2024 reported:
(a)    an intradural lesion at L1/2 causing some adjacent effect on the cauda equina nerve roots displacing them – the radiologist suggested referral to a spinal surgeon;
(b)    heterogeneous T2 hyperintensity and low to intermediate signal on the T1, and
(c)    mild diffuse disc disease with no disc protrusion but “a tiny posterior annular tear” at L5/S1.

Medico-legal reports

Dr Machart, orthopaedic surgeon provided a joint report to the claimant and the insurer dated 2 February 2023.
Dr Machart has a history of the claimant experiencing pain in the chest and upper thoracic spine and that she has had no physical therapy. He records that “the pain had eased and not resolved completely.” Her current symptoms were said to be upper thoracic pain with a background ache of variable intensity. She has tried to go back to her hobby of riding horses but has not and housework is provided including gardening assistance by iCare (her husband’s carers).
Dr Machart noted no X-rays were brought to the examination and he refers to the radiological reports and says, “the exact pathology will require precise definition from radiologist.”
He recommended physiotherapy if the fractures had healed but that there would be “a degree of chronic discomfort in the upper thoracic vertebra given there were 3 fractures.”
In terms of impairment he assessed, on the basis there were three fractures a “multilevel structural compromise” which translated to a 20% WPI.
Dr George, psychiatrist provided a joint report as well dated 30 March 2023. He diagnosed chronic post-traumatic stress disorder. He assessed Ms Wilder’s WPI at 5%.
The insurer obtained a report from Dr Korber, radiologist dated 11 April 2023. He reviewed the imaging from the CD provided to him by the insurer. He has included copies of some of the images in his report. He says:
“Specifically in relation to the vertebrae, there is no evidence of compression fracture of T1. There is no definite evidence of compression fracture of T2. There is a fracture of the superior endplate of T3. This is of indeterminate age. There is no evidence of soft tissue swelling surrounding this bone.”
He disagrees with the radiologist’s opinion in the report because:
(a)    the view of the T1 and T2 vertebrae are not as clear on the thoracic CT as they are on the cervical CT scan;
(b)    while he acknowledges an indentation of the endplate of T2 shown on the cervical spine CT, he does not think it is a fracture;
(c)    he says there is “certainly no fracture of T1,” and
(d)    there is evidence of a superior endplate fracture of T3, but he considered it of “indeterminate age with no soft tissue swelling surrounding the bone.” However, he says “it is possible that this is a fracture that was sustained in the motor vehicle accident.”
Dr Korber said that he would like to view a progress CT (and not an MRI) of the thoracolumbar junction to assist in further diagnosing the T3 fracture noting that “fractures consolidate and become more visible over three months after the accident.” The Panel notes while the progress CT was done, the insurer has not provided any supplementary report from Dr Korber about it.
Dr Dixon provided a report to the claimant’s solicitors on 10 September 2024. He did not physically examine the claimant conducting the re-examination by telehealth means.
He had a history from the claimant of her work (hairdressing) and her hobbies (equestrian) noting both of these had been curtailed since the accident. The claimant reported being well before the accident with no previous neck or back problems.
The claimant said her neck pain and stiffness affects her ability to drive and her neck and back pain affects her sleep. She is no longer able to care for her partner (injured in a car accident in 2016) and relies on her adult son. The claimant reports the development of de Quervain’s tenosynovitis since the accident.
Dr Dixon’s examination by zoom revealed:
(a)    dysmetria (restriction of neck motion);
(b)    occipital headaches;
(c)    symmetrical range of motion in the shoulders, elbows, wrists and hands
(d)    a tender swollen area at the base of her thumbs;
(e)    stiffness and restricted range of motion in the thoracic spine which was asymmetrical;
(f)    some pain in the lower back without sciatica;
(g)    normal gait, and
(h)    normal straight leg raise.
He says he reviewed Ms Wilder’s radiology including the 14 September CT scan which he said showed T1, T2 and T3 superior end plate fractures with a loss of body height of between 10 and 20%.
He diagnosed a whiplash injury to the neck, seatbelt chest injury, contusion to both hips, injuries to the spine, an aggravation of a psychiatric injury, dental injuries due to teeth grinding caused by anxiety and sleep disturbance with anxiety and depression due to post-traumatic stress disorder.
Dr Dixon assessed WPI at 24% on the basis of:
(a) 5% due to occipital headaches and occipital neuralgia (table 23 in the nervous system chapter), and
(b) multi segment vertebral compromise assessed at 20% WPI following table 6.7 and cl 6.151 of the Guidelines.
The Panel notes the claimant has not provided a report from an expert radiologist in response to Dr Korber’s report and there is no supplementary or further report from Dr Dixon commenting on the October 2024 radiology before the Panel.

Other assessments

Medical Assessor Shen examined the claimant and issued his certificate on 13 March 2024. He diagnosed the claimant with a post-traumatic stress disorder and a WPI of 6%.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSOR GIBSON

Ms Wilder attended the re-examination on Friday 13 December 2024 in my rooms as arranged. She arrived with her daughter who remained in the waiting room. She brought no imaging with her for the assessment. The disc of the images had been provided to me by the Commission.
Ms Wilder said she had driven down from Young the day before, the trip taking about five hours, although she made multiple stops on the way she said due to back pain.

Pre-accident medical history

Ms Wilder advised that she had been fit and well before the accident. She initially could not recall any prior injuries, but when prompted regarding any falls from horses, she did recall the accident in April 1999. She confirmed she had visited Young District Hospital and had some imaging performed. She could not recall further details.
She was taken to the clinical notes from Young District Hospital and I read out the record of a visit on 20 April 1999 after she had fallen from a horse and landed flat on her back. She had complained of pain between the shoulder blades. She was discharged from the hospital the following day after imaging was performed of her chest, cervical and thoracic spines. The imaging had shown some narrowing of the right atlantoaxial joint and a few Schmorl's nodes and minor central endplate depression in the thoracic region. There was minimal lipping of vertebral body margins in the mid thoracic region.
Ms Wilder said she thought she had recovered promptly from this injury, and it was "no issue." She returned to horse-riding "straightaway" although on another horse. She had not taken any time off work after this accident that she could recall.
There was no other history of any other horse-riding accidents, or any injuries at work or elsewhere. There were no prior motor vehicle accidents.
She had in the past been prescribed an antidepressant, but this had been ceased in January 2020 after discussions with her general practitioner, as it was not felt the medication was required any longer.

Relevant personal details

Ms Wilder said she was very active prior to the subject accident. She was heavily involved in greyhound training. She was horse-riding and regularly competing in dressage events. She was also working as a self-employed hairdresser. She drove to Canberra each week to babysit her grandson.
She currently resides with her partner, Garry and her 38-year-old son in a house on a

10-acre block. She said her partner had a serious motor vehicle accident in 2016 and has since required a carer (which I understand is provided by Lifetime Care and Support). She added that he is moving into his own house in a week as this has been specifically constructed to accommodate his needs. She added that the initial plan was that she would move with him, but she has decided she needs to take a break and remain in her own place.
Ms Wilder said she does the cooking. She takes care of the laundry. She orders shopping online and then drives to the shops and picks up the groceries. They have a cleaner come in on a weekly basis to vacuum and clean floors and bathrooms and a contractor comes in for garden maintenance and lawn mowing. These paid services are supplied for her partner through Lifetime Care.

History of the motor accident

Ms Wilder was the front seat passenger in her mother’s Holden Trax sedan. They were on their way home from bingo and her mother was driving as Ms Wilder’s own car was being repaired. They had reached the intersection of Olympic Highway and Pestle Lane, and her mother had stopped to make a right-hand turn. Ms Wilder said she was not really focusing at the time, when they were suddenly hit from behind by a large truck and pushed into a semitrailer heading in the other direction. There were two impacts with this other truck, first to the front of the car and then to the passenger side, as their car spun around about 360 degrees. Ms Wilder pulled on the hand brake. The air bags had not deployed. Once they came to a stop, her mother was very distressed and asked her to retrieve her handbag from the backseat. Ms Wilder tried to twist around to retrieve the bag when she noticed the pain in her upper back.
They had then remained in the car until the police and ambulance arrived. Ms Wilder’s door had to be cut off in order for her to get out of the car. She said that both her and mother’s glasses had flown off with the impact. She was helped to the side of the road.
Ambulances arrived and her mother was conveyed to Wagga Base Hospital, while Ms Wilder was taken to Young District Hospital. She said initially there was only chest pain, then the neck pain came on and she was fitted with a neck brace. She said the pain became increasingly severe that evening. She said she had reclined her hospital bed but was then unable to twist over to reach the bed controls so she had to have a nurse assist. She said the pain had been affecting most of her upper back at that stage.
Ms Wilder was discharged from the hospital the following day and advised to rest and take analgesics for pain. She said she had taken it easy once she arrived home and was performing some, but not all of her usual domestic chores. She said she was having a lot of difficulty hanging out the washing due to the upper back pain. She did not return to her hairdressing work because of difficulty holding her arms up to work on hair. She thinks she may have got back to some limited work by December of that year.
She came under the care of her regular general practitioner, (GP) Dr Larcombe. She was unsure when she had first visited the doctor but added that there was a long wait to get an appointment due to their rural location and limited GPs.
She started visiting a psychologist who recommenced the antidepressant, escitalopram. The psychological therapy was ceased about 12 months ago when her psychologist left the profession.

Current status

Ms Wilder takes paracetamol and aspirin as required for pain. She also takes calcium and multivitamin tablets.

She could not recall having had a dual-energy X-ray absorptiometry (DEXA) or bone scan.
Ms Wilder said her neck feels stiff and sore in the morning, but the symptoms improve as the day goes on. She also notices her neck being stiff and sore when she is driving and turning to check the road. When asked whether this neck pain spread, but she said it did not.
She says she suffers with headaches every few weeks and these can last up to a day and may be accompanied by nausea. She said aspirin helps. Ms Wilder denied any history of headaches prior to the subject accident. She said the headaches largely start at the back of her head (she pointed to her neck) and spread centrally up and over the top of her head. While the presence of nausea could indicate migraine, there were no other features of migraines (for example there was no visual disturbance).
In relation to the thoracic spine, she notices the upper back pain particularly after she has been seated for a while, or if she does too much housework, then she tends to notice it more the next day. She indicated (by pointing) the mid to upper thoracic spine (T3 and T4) as the region where she experiences this pain. She said when she is symptomatic, she has difficulty holding up her arms. She feels she gets a bit cranky when she has the pain.
There is occasionally some discomfort over the lateral aspect of her right upper arm.
There is upper lumbar pain and stiffness particularly in the morning. She says this has been present since the subject accident. She said the pain did not radiate.
When asked about her hips, she said she has issues climbing stairs due to pain over both buttocks and lateral aspect of both hips. She said there are not many steps at home. She first noticed the hip discomfort in May 2024 when she travelled to Taiwan for her son's wedding, as she was finding there were a lot of stairs everywhere. But then, on further reflection she felt her symptoms may have come on earlier, maybe six months after the accident but she was not really sure.
In relation to her chest and rib cage, the only ongoing issue is occasional discomfort over the anterior aspect of the left lower ribs.

Physical examination

Ms Wilder was 165cm tall and weighed 73kg. She had a normal gait. She was right hand dominant. She could walk on heels and toes and could squat fully.

Cervical spine and upper limbs

On examination of the cervical spine, there was no significant tenderness on palpation. There was a normal range of movement in all three planes (flexion / extension; right and left rotation and right and left lateral flexion). There was no muscle spasm or guarding observed at any time during the course of the examination.
On examination of the upper limbs, there was no muscle wasting and arm circumferences were measured at 30cm (10cm above the olecranon) on both sides and forearms 25.5cm on the right (10cm below the olecranon) and 25cm on the left. This difference is not clinically significant and likely reflects the claimant’s right-hand dominance.
Upper limb power, sensation and reflexes were normal and symmetrical on testing. There were no nerve root tension signs on testing.
Shoulder and upper limb joint movements were normal, and Ms Wilder demonstrated a full range of motion in both shoulders for flexion, extension, abduction, adduction, internal and external rotation.

Thoracic spine and chest

On examination of the thoracic spine, there was upper and mid thoracic central and paravertebral tenderness at T3 and T4.
There was three-quarters normal rotation on both sides and normal range of motion in the flexion and extension plane.
There was no guarding or spasm observed.
The claimant’s chest was not tender and she had no difficulty breathing. There was no abnormality detected.

Lumbar spine and lower limbs

While the claimant complained of upper lumbar spine, on examination of the lumbar spine, there was mild lower lumbar tenderness, both centrally and paravertebrally. There was three-quarters normal flexion and extension and normal lateral flexion on both the left and right.
On examination of the lower limbs, there was no atrophy present. Circumferential measurements were equal at the thighs measuring 43cm (10cm above the superior pole of the patella). The calves measured 36cm on both sides at their widest girth.
Lower limb power, reflexes and sensation was normal and symmetrical. There were no sciatic nerve root tension signs on testing.
The range of motion in the hips was normal.
Towards the end of the assessment, Ms Wilder did report some increasing low back discomfort and stood up to stretch. She said she is no longer riding horses and although she has 16 greyhounds at home, she would have to take a break after brushing five of the dogs.

Imaging studies

Ms Wilder did not bring any scans with her to the re-examination.

CONSIDERATION OF THE ISSUES

Diagnosis and causation

The Panel notes the mechanics of the accident involved a rear end shunt into oncoming traffic and a second collision with the car spinning and involving two separate impacts. There is a suggestion that the speed of at least one of the vehicles involved was 80 kilometres an hour. The Medical Assessors are of the view that the type of accident could have resulted in the claimant moving around inside the car and sustaining the injuries alleged, namely an injury to the cervical, thoracic and lumbar spine as well as the ribs and chest.

Chest, rib, cervical and thoracic spine

The Panel notes the hospital records, and the claim form provide contemporaneous evidence of a chest and rib injury as well as a cervical and thoracic spine injury. The Panel accepts that these injuries occurred.
The Medical Assessors are of the view that the claimant sustained a soft tissue injury to her chest and ribs and cervical spine.
Whether the claimant sustained one or more than one thoracic fracture will be dealt with separately below.

Lower back

The insurer says there is no evidence of a lower back injury. The Panel notes the references to back pain in Ms Wilder’s statements and that Dr Kwan in the medical certificate and Dr Larcombe in his referral for physiotherapy refers to back pain. The references to “back pain” is somewhat imprecise but the Panel accepts the claimant’s history given to Medical Assessor Gibson of symptoms in the upper part of her lower back and accepts that the claimant did sustain an injury to her back, both thoracic and lumbar in the accident.
The Medical Assessors are of the view that this lower back injury is a soft tissue injury.

Did the claimant sustain any thoracic spine fractures in the accident?

The claimant’s thoracic spine was not X-rayed at Young Hospital, but she did have a CT scan on the day which reported subchondral compressions fractures at three levels which were “of indeterminate age”.
Dr Korber, radiologist for the insurer examined the hospital scans and says there is no evidence of a compression fracture at T1, no definite evidence of a fracture at T2 and a superior endplate fracture at T3. He also refers to the T3 fracture being of indeterminate age because there is no evidence of soft tissue swelling surrounding the bone which would support there being an acute fracture. However, Dr Korber did appear to accept causation of the T3 fracture.
The Medical Assessors were provided with digital access to the Young Diagnostic Imaging studies from September 2020. Having examined these images, it is the Medical Assessors’ clinical judgment that there is clearly a compression fracture of T3 but the Medical Assessors could not confirm any additional fractures.
Dr Korber’s opinion was that he was unsure about the T1 and T2 fractures and he wanted to see updated radiology. This was done and the 24 October 2024 imaging showed superior endplate compression of T3 but at no other level. The Panel notes there is no further report from Dr Korber relied on by the insurer.
The clinical judgment of the Medical Assessors accords with the opinion of Dr Korber that “fractures consolidate and become more visible” with time. Having reviewed the October 2024 images, the Panel is satisfied that the claimant has a fractured T3 vertebra (because it has consolidated and become more visible) but not a T1 or T2 endplate fracture (because no fractures are visible at those levels in the updated scans).
The Panel notes the 1999 Young Hospital records and the suggestion of a thoracic spine endplate “depression” which could indicate a compression fracture occurred in the horse-riding incident. The X-ray image is not available, and the report does not identify which particular thoracic vertebra may have been affected but does refer to “mid thoracic spine”. The clinical note also suggests the claimant experienced pain in the mid thoracic spine. As the thoracic spine has 12 vertebra the “mid” vertebra could be a reference to a vertebra from T5 – T8 but without any further information, the Panel is not prepared to make a finding of where that fracture might be.
The claimant complained immediately after the car accident of upper and mid thoracic pain and on examination by Medical Assessor Gibson was tender in the area of T3 and T4.
The clinical judgment of the Medical Assessors is that the claimant’s complaints are consistent with a T3 endplate compression fracture injury.
Having reviewed the September 2020 CT scan and the October 2024 CT, Medical Assessors Gibson and Moloney are satisfied that there was a fracture at T3 caused by the accident, but there was no fracture at T1 or T2.

Other injuries alleged by the claimant

Dr Dixon diagnosed an occipital nerve injury (neuralgia) based on a finding that the claimant indicated occipital headaches at a zoom examination. He seems to have assumed the claimant lost consciousness or may have sustained a head injury because she could not remember the accident. He considered Ms Wilder had a whiplash injury with dysmetria and a radicular complaint (that is pain radiating into the occiput) and assessed 5% WPI on the basis of Table 23 at page 152 of the AMA 4 Guides. This table is in the neurological chapter of the Guides and not in the part of the Guides relevant to cervical spine assessment.
As an occipital nerve root injury was not referred by the parties for assessment, was not assessed by Medical Assessor Kuru and the insurer has not had the opportunity to gather evidence about it, the Panel will not include any impairment resulting from it in the assessment. The Medical Assessors however include the following comments as an indication only of causation and possible impairment
(a)    Ms Wilder describes her headache as originating in the neck and radiating up over the head accompanied by some nausea. The Medical Assessors note this pattern would suggest the involvement of the third and greater occipital nerves which would usually be suggestive of a significant head or neck injury;
(b)    the hospital records note no headache, no loss of consciousness and no seizures. A brain scan was normal and the claimant’s Glasgow Coma Scale (GCS) score was 15 out of 15. Ambulance records note no loss of consciousness and radiology of the cervical spine does not indicate any features that might be responsible for an occipital nerve injury, and
(c)    injuries to the occipital nerves would usually present as severe, throbbing or electric shock-like symptoms immediately following the accident. This is not the sort of headache that Ms Wilder described to Medical Assessor Gibson.
Dr Dixon diagnosed a De Quervain’s tenosynovitis. As this was not referred by the parties for assessment, not assessed by Medical Assessor Kuru and the insurer has not had the opportunity to gather evidence about it, the Panel will not include any impairment resulting from it in the assessment.
The following comments about the condition are provided as an indication only of causation and the likely impairment:
(a)    while Dr Dixon diagnosed a De Quervain’s tenosynovitis and the claimant gave him a history of this arising after the accident, the Panel notes Dr Dixon did not include any impairment from it in his report. The Medical Assessors on the Panel note that the claimant submitted this should be assessed as consequential to spinal injuries;
(b)    spinal injuries including fractures or spinal nerve or nerve root injuries do not cause De Quervain’s tenosynovitis;
(c)    De Quervain’s tenosynovitis is an inflammatory condition most often caused by repetitive hand and wrist movements, and
(d)    while direct trauma can cause the condition, this would be associated with the formation of scar tissue from a wrist injury restricting the movements of the tendons and there is no evidence of that in Ms Wilder’s case.
Dr Dixon had also diagnosed “contusion to both hips” but he did not include any impairment resulting from this injury. As this was not referred by the parties for assessment, not assessed by Medical Assessor Kuru and the insurer has not had the opportunity to gather evidence about it, the Panel will not include any impairment resulting from it in the assessment but notes:
(a) the claimant was unsure about when she first noticed symptoms in her hips but thought it was related to climbing stairs and it involved the buttocks, and
(b) on examination the claimant’s hip range of motion was normal and if assessed would result in no impairment.

IMPAIRMENT ASSESSMENT

What is Ms Wilder’s chest and rib impairment?

The claimant complained to Medical Assessor Gibson of occasional discomfort over the anterior (front) aspect of the left lower ribs.
The Panel notes that cl 6.23 of the Guidelines provides that certain injuries do not result in an assessable impairment and gives the examples of uncomplicated healed sternal and rib fractures. In Ms Wilder’s case there is no evidence of sternum or rib fractures, and the Medical Assessors have diagnosed a soft tissue injury. This injury has left the claimant with some continuing symptoms but in accordance with the Guidelines and the AMA 4 Guides these symptoms do not result in any assessable impairment. The claimant therefore has a 0% WPI for these injuries.
A 0% impairment does not mean the claimant did not injure her chest and ribs in the accident but simply means while she did sustain an injury the injury does not result in a permanent whole person impairment in accordance with the Guidelines and Guides.

How is impairment assessed in the spine?

Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed in accordance with

cl 6.111 of the Guidelines.
The spine is divided (cl 6.131) into three regions:
(a)    cervical;
(b)    thoracic, and
(c)    lumbar.
If injury to the spine is alleged in more than one region, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.131). If there are multiple impairments within one spinal region ,the impairments are not combined but the highest rating category is chosen (6.132)
There are five diagnostic related categories, and a number of indicia provided (see Table 6.7). Clause 6.125 provides that the starting point is Table 6.7 and the DRE descriptors from pages 102 – 107 of the AMA 4 Guides as amended by the clause.
There are neurological differentiators (for example radicular symptoms versus radicular signs) and structural inclusions (for example vertebral fractures) to be considered.
The first category is DRE category I which is selected if there are symptoms which may include pain.
One of the DRE II options provided for in Table 6.7 requires there to be:
(a)    pain with guarding or
(b)    non-uniform range of motion – dysmetria or
(c)    non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
Other possible diagnoses which would attract a category II finding from Table 6.7 are:
(a)    a single vertebral body compression of less than 25%;
(b)    a posterior element fracture, or
(c)    a transverse or spinous process fracture.
A DRE III finding must be made if there is radiculopathy which is defined in cl 6.138 as “the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination.” The five signs of radiculopathy are:
(a)    loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8);
(b)    positive sciatic nerve root tension signs (see Table 6.8);
(c)    muscle atrophy and/or decreased limb circumference (see Table 6.8);
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is also anatomically localised to an appropriate spinal nerve root distribution.
Other possible diagnoses which would attract a category III finding from Table 6.7 are:
(a) a single vertebral body compression fracture with 25-50% loss of height, and
(b) posterior element fractures with spinal canal deformity or radiculopathy.
If there is a single vertebral body compression of more than 50% then a DRE category IV (if there is no radiculopathy) or V (if there is radiculopathy) is available (see cl 6.151).
If there are multiple vertebral fractures, clause 6.143 – 6.146 provides further guidance. The term multilevel structural compromise is “interpreted as fractures of more than one vertebra” where those fractures are of the vertebral body or posterior elements but does not include transverse or spinous process fractures.
Guidance as to how to measure vertebral body compression is provided for at 6.148 and the amount of compression is to be measured on a lateral X-ray or, if not available a CT scan. Medical Assessors are required to measure the images themselves.
One or more end-plate fractures in a single spinal region without measurable compression are assessed as DRE category II as per cl 6.150.

What is Ms Wilder’s cervical spine impairment?

Ms Wilder complains of pain in her neck. There is no evidence of a fracture in any part of the cervical spine.
On examination of her cervical spine, there was no guarding, no dysmetria (all movements were normal and equal) and Ms Wilder made no complaint of radiating pain or any other symptoms which could be interpreted as non-verifiable radicular complaints. Ms Wilder did mention to Medical Assessor Gibson occasional pain in her right upper arm, but the clinical judgment of the Medical Assessors is that this is a non-specific complaint which cannot be isolated to a dermatomal pattern indicating a possible nerve or nerve root injury.
The Panel finds that the claimant’s cervical spine injury is assessed as a DRE category I impairment which translates to a 0% WPI.
The Panel notes that cl 6.162 of the Guidelines (which takes precedence over the AMA 4 Guides) says that “headache … potentially arising from the nervous system, including migraine, is assessed as part of the impairment related to a specific structure”. The Medical Assessors are of the view that on the evidence and information from the records and Ms Wilder’s history that her headaches are cervicogenic that is arising from the neck injury.
These headaches are therefore assessed as part of the cervical spine. The Panel is of the view the headaches do not result in any additional cervical spine related impairment under the Guidelines.

What is Ms Wilder’s lumbar spine impairment?

Ms Wilder complains of pain in the upper lumbar spine and not the lower lumbar spine. While there was some mild lower lumbar spine tenderness, there was no spasm or guarding and no dysmetria (while there was restriction in flexion and extension there was an equal loss of motion). The claimant denied radiating pain from her back. The symptoms in the buttocks and hips are therefore not accepted by the Medical Assessors as non-verifiable radicular symptoms.

There is no evidence of any structural inclusions such as fractures of the lumbar vertebrae.
The Panel finds that the claimant’s lumbar spine injury is assessed as a DRE category I impairment which translates to a 0% WPI.

What is Ms Wilder’s thoracic spine impairment?

Using the neurological differentiators of radicular symptoms (DRE II) and signs of radiculopathy (DRE III), the claimant satisfies neither. At the examination with Medical Assessor Gibson, there was no guarding, no dysmetria and no non-verifiable radicular symptoms (such as radiating or shooting pain) coming from the thoracic area which would justify a DRE II rating. There were also no signs of radiculopathy in the upper or lower limbs and therefore no DRE III rating is possible.
Ms Wilder relies on the hospital radiology, Dr Machart and Dr Dixon’s reports that she has superior endplate fractures at three levels of her thoracic spine caused by the accident which would lead to a finding of “multilevel structural compromise” which would attract a 20% WPI.
As the Panel has found earlier that the claimant sustained only one endplate compression fracture, the claimant does not have multilevel structural compromise.
Clause 6.148 of the Guidelines reads as follows:
“Compression fracture: The preferred method of assessing the amount of compression is to use a lateral X-ray of the spinal region with the beam parallel to the disc spaces. If this is not available, a CT scan can be used. Caution should be used in measuring small images as the error rate will be significant unless the medical assessor has the ability to magnify the images electronically. Medical assessors should not rely on the estimated percentage compression reported on the radiology report, but undertake their own measurements to establish an accurate percentage using the following method:
(a) the area of maximum compression is measured in the vertebra with the compression fracture
(b) the same area of the vertebrae directly above and below the affected vertebra is measured and an average obtained.
(c) the measurement from the compressed vertebra is then subtracted from the average of the two adjacent vertebrae
(d) the resulting figure is divided by the average of the two unaffected vertebrae and turned into a percentage
(e) if there are not two adjacent normal vertebrae, then the next vertebra that is normal and adjacent (above or below the affected vertebra) is used.
The calculations must be documented in the impairment evaluation report.”
In calculating the impairment for the T3 end plate fracture, the Panel used the best image from the October 2024 CT scan.
In accordance with cl 6.148:
(a)    the measurement of T3 at the place of maximum compression was 2.5cm;
(b)    the measurement of the vertebra directly above, T2, was 3cm and the one below, T4, was also measured at 3cm;
(c)    the average of T2 and T4 is 3 (3 plus 3 = 6, divided by 2);
(d)    the average (3cm) minus the measurement of T3 (2.5cm) is 0.5cm;
(e)    0.5cm divided by the average of 3 as a percentage is 16.67%.
On the basis of a single T3 endplate fracture and a loss of height of 16.67% (which is less than a 25% reduction in vertebral height). This results in an impairment of DRE II which equates to a WPI of 5%.

The 1999 fall from a horse led to radiology which suggested an endplate injury in the thoracic spine. The X-ray report is lacking in detail, and the Panel is unable to ascertain the level of the thoracic spine where this endplate injury occurred in particular whether it was at T3 or elsewhere. The Panel is not satisfied on the evidence currently available that there was a pre-existing structural inclusion justifying any deduction from the 5% WPI.

CONCLUSION

The Panel finds the claimant has a total WPI of 5% resulting from the assessed accident-related injuries made up as follows:
(a)    chest and ribs  0% no resulting impairment
(b)    cervical spine and cervicogenic headaches         DRE I - 0%
(c)    lumbar spine  DRE I - 0%
(d)    thoracic spine – compression fracture                  DRE II - 5%
As the Panel has arrived at the same conclusion as Medical Assessor Kuru, the Panel will confirm his certificate.

[2025] NSWPICMP 103

19 February 2025