Winn v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 812
•2 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Winn v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 812 |
| CLAIMANT: | Henrietta Winn |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Tania Rogers |
| DATE OF DECISION: | 2 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment by Medical Assessor (MA) Woo of whole person impairment (WPI) at 10%; claimant’s application for review under section 7.26; multiple injuries alleged including lumbar, thoracic and cervical spine, right shoulder, lower limbs, chest (fractured sternum) and rib (fracture to 4th); claimant re-examined; issue arose about lumbar versus thoracic spine transverse fracture and error found in hospital’s discharge summary; Claimant sustained a single transverse fracture of L4; Panel found all injuries caused and clinical findings showed claimant had recovered from most injuries and had no impairment; only impairment found was 5% for lumbar fracture; Held – certificate of MA Woo revoked as he included actual percentage in the certificate; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Woo dated 7 June 2024. 2. Certifies that the degree of permanent impairment resulting from the injuries sustained by the claimant and caused by the motor accident on 23 January 2021 is 5% which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Henrietta Winn was involved in a motor accident on 23 January 2021. She was driving along the Pacific Highway at about 100kmph when the driver of a car came out from a side road (at Failford), with no lights and struck her car. The severity of the collision is reflected in the fact that the driver of that vehicle died from the injuries he sustained in the collision.
The claimant says she injured her spine, chest, pelvis, right shoulder and right knee in the accident and made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that she says caused her accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with her damages claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 7 June 2024 Medical Assessor Woo determined the claimant had a WPI of 10%.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 8 August 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and the delegate then convened this Review Panel (the Panel) to conduct the Review.
The claimant’s psychological injuries were assessed by Medical Assessor Smith on 21 June 2024 (8% WPI). The Panel understands no review has been lodged in respect of that decision.
LEGISLATIVE FRAMEWORK
General
Ms Winn’s claim and her entitlement to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act.
If a person’s only injuries are threshold injuries, while they can make a claim for damages, s 4.4 of the MAI provides that they cannot recover damages in the claim. In Ms Winn’s case, as she sustained a fractured sternum and lumbar spine fracture, there is no issue about this, she has sustained at least two non-threshold injuries.
Under Part 4 of the MAI Act, an injured person can claim damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute Resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Woo’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the original 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 necessarily 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 (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant. The relevant clauses of Chapter 3 will be referred to in the assessment part of these reasons.
ASSESSMENT UNDER REVIEW
Medical Assessor Woo examined the claimant on 7 June 2024 and issued his reasons on 12 June 2024.
At [2][5] the Medical Assessor confirms he was asked to assess the following injuries:
(a) thoracic spine – # T4 transverse process;
(b) cervical spine – musculoligamentous injury to neck;
(c) pelvis – musculoligamentous injury;
(d) lumbar spine – musculoligamentous injury;
(e) chest – right hand side fourth rib fracture;
(f) shoulder – musculoligamentous injury on right shoulder, and
(g) knee – soft tissue injury/numbness to right knee.
[5] The numbers in square brackets correspond to the section number of the Medical Assessor’s decision.
Medical Assessor Woo took a history of a right foot fracture in 2013, buttock pain in April 2021 and osteoarthritis in the right thumb in October 2021. The Medical Assessor also noted the claimant had been working as a remedial massage therapist and childbirth educator before the accident.
The claimant gave Medical Assessor Woo a history of the accident and immediate treatment. The claimant said she was taken to Manning Base Hospital by police car as other passengers were taken to hospital by ambulance.
The claimant had chest pain, neck pain, back pain and bruising of her right leg.
The claimant reported tingling in her 4th and fifth fingers at hospital but no other neurological signs. She had an MRI showing no acute trauma and she was discharged after four days.
The claimant gave a history of subsequent injuries – a fall on 24 April 2022 when she fractured her right hand and a fall while ice-skating on 13 November 2023 when she dislocated her right shoulder.
The claimant’s current symptoms included severe headaches, constant neck pain, numbness in both arms and tingling in the fingers, sporadic pain in her upper and lower back and occasional numbness in her feet. Her right knee pain had improved, and her right shoulder and pelvic injuries caused no issues.
On examination, Medical Assessor Woo records:
(a) chest and ribs – there was no tenderness over the sternum and right rib cage;
(b) cervical spine – vague tenderness, range of motion was normal and symmetrical. there were non-verifiable radicular complaints (tingling in the fingers of both hands) but there were no neurological signs;
(c) thoracic spine – vague tenderness, normal range of motion, no guarding or non-verifiable radicular complaints and neurological examination was normal;
(d) lumbar spine – tenderness flexion ¾ normal and extension ½ normal (but no dysmetria). The foot numbness was not in a radicular pattern and therefore was not a non-verifiable radicular complaint. There was no muscle guarding and no neurological abnormalities;
(e) shoulders – the right shoulder had a 20-degree decreased range of motion which he attributed to the dislocation, and
(f) there was no abnormality in the lower limbs and knee motion was normal.
Medical Assessor Woo diagnosed soft tissue injuries to the right shoulder, right knee, pelvis, lumbar spine and cervical spine with the thoracic T4 fracture and the fractured fourth rib.
He found the following impairments:
(a) 5% due to non-verifiable radicular complaints (numbness);
(b) 5% due to the thoracic spine fractures, and
(c) 0% for all other injuries.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant takes issue with the Medical Assessor’s assessment of shoulder impairment noting that he found the loss of 20 degrees of internal rotation was due to the fall while
ice-skating. The claimant points out that Dr Bodel had recorded a 20 degree reduction in right shoulder internal rotation in an examination after the accident but before the fall.
The claimant says the Medical Assessor has made a finding based on no evidence and has failed to provide proper reasons. The claimant also says the Medical Assessor has failed to apply the correct test of causation.
The claimant notes that the 20 degree loss of internal rotation would translate to a 1% WPI which would make a material difference to the overall assessment.
Insurer’s submissions
The insurer points to the claimant’s pre-accident medical history including complaints of back and neck pain.
The insurer submits the claimant did not report right shoulder pain to the hospital and on 25 January 2022 her right shoulder motion was full. In the months after the accident the claimant did not report ongoing right shoulder pain. The insurer says the first report of right shoulder pain was after the ice-skating incident in November 2023. The insurer notes that Dr Bodel found restricted range of motion in all planes of motion. The insurer says the Medical Assessor was entitled to find that the accident did not cause an injury to the right shoulder.
The insurer says the Medical Assessor has explained his reasons and did apply the correct test of causation and gave his own opinion on the medical question.
Procedural matters
On 8 August 2024 the previously constituted Panel issued directions to the parties. The claimant was directed to upload a bundle of all the documents relied on by 6 September 2024 and the insurer was directed to upload a bundle of documents by 27 September 2024.
At the re-examination the claimant confirmed with Medical Assessor Gorman that she thought she had sustained a fracture in her lower back and not her thoracic spine. A close examination of the notes at that time indicated the hospital has made an error in the summary of the radiology stating it revealed a thoracic (T4) transverse fracture when the actual radiology report referred to a lumbar (L4) transverse fracture. This was brought to the attention of the parties, and they were advised the Panel was proceeding on the basis that the claimant had sustained only one transverse fracture the L4 and not a T4 fracture.
On 14 November 2024 the insurer confirmed it agreed with that approach. No response has been received from the claimant’s legal representative.
REVIEW OF THE EVIDENCE
General observations
The claimant provided a bundle of 430 pages and the insurer, 612 pages. Both the claimant and the insurer have provided about 250 pages of records from Maroubra Medical Centre.
Claim form and claim documents
The claim form was signed by the claimant as true and correct and dated 14 February 2022. The claimant describes the accident suggesting her bonnet smashed her windscreen, her car “seem to go into a spin” and that as soon as the car stopped, she took her daughter out and ran away from the car.
She describes her injuries as follows:
(a) slightly displaced fractured sternum;
(b) fracture of the T4 transverse process creating pain in the middle of the back;
(c) bruising and pain around her ribcage mainly on the left side;
(d) bruising at both hips and right knee;
(e) weakness of the right ankle and could not walk easily for the first few days, and
(f) badly bruised nose causing pain in her head and difficulty lifting her head “whilst being supine.”
The Panel notes that three weeks after the accident, when the claim form was completed, there is no mention of an injury to the pelvis, or of an injury to the lower back, neck or shoulders.
The first certificate of capacity completed by Dr Moorea and dated 1 February 2022 lists on a T4 spinal fracture. A third certificate of capacity dated 17 March 2022 lists L4 spinal fracture and no other injuries. A further certificate of capacity dated 10 May 2022 included the sternal fracture.
Treating medical records and reports
Before the accident
Pre-accident records from Maroubra Medical Centre have been produced commencing in January 2014.[6] There are no records of relevance to the injuries or the current proceedings until January 2019 when the claimant attended for left plantar fasciitis and right wrist and arm pain worse after a day of work.
[6] Page 110 of the claimant’s bundle.
On 12 March 2020 the claimant attended with right posterolateral hip pain which she was reported to have had for five to six months, and she was “using bands on legs to help”. The claimant was swimming, had no leg pain or lower back pain.
On 6 August 2020 she attended after a fall and possible rib fracture on the left side. An X-ray showed no fracture.
On 22 October 2020 during a consultation regarding other matters the claimant listed as her third issue of importance “sciatic pain in hips and central nervous system”. On 24 March 2021 the claimant reported a fall a month previously and she developed a large bruise on her buttock and since then has had pain in her right leg down the back of her legs which she called sciatica. On 6 April 2021 the claimant had further buttock pain with a “nerve like quality”. Power and reflexes were normal, and sensation was normal. A CT guided nerve root injection was discussed as was non-steroidal anti-inflammatory medication and physiotherapy.
In September 2021, the claimant was having pain in her wrists (both left and right). The claimant was referred for physiotherapy and to Dr Myers, orthopaedic surgeon on 29 October 2021.
After the accident
The emergency attendance details from the hospital notes record right leg pain, thoracic pain and chest pain from the seatbelt. The claimant was discharged with paracetamol and Targin and to follow up with her general practitioner (GP) in a week. The records also indicated that the claimant complained of right knee pain and right pelvic tenderness. Both of these areas were imaged but no factures in the pelvis was found.
After the accident, the claimant attended Maroubra Medical Centre. She complained of chest pain and also anxiety (both hers and her daughters) in the first couple of attendances. The claimant was referred for acupuncture on 22 February 2022 and physiotherapy on 17 March 2022. There is a note on 31 March 2022 of physiotherapy having been provided and Ms Winn felt she was improving. On 12 April 2022 the claimant was referred for remedial massage for neck and back pain.
On 24 April 2022 the claimant attended Prince of Wales Hospital after falling whilst on a run and landing on her left side and she had right wrist pain. An X-ray revealed a transverse fracture at the base of the fifth metacarpal.
On 10 May 2022 there was an attendance for the fractured fifth metacarpal and Ms Winn wanted a bone density test as she had two fractures in the last three months and her mother had a history of osteoporosis.
On 7 June 2022 the claimant attended for right knee pain, lower back pain and numbness in the knee. She was referred for exercise physiology and acupuncture.
On 12 July 2022 the claimant complained of buttock pain while sitting and driving and her leg was feeling weaker with paraesthesia. On 10 August 2022 the claimant was complaining of twinges in her lower back, numbness in her arms which may have been increasing and neck pain. She was having physiotherapy.
There are ongoing consultations in November and December which appear to be associated with appointments for certificates of capacity. The claimant complains of neck, arm and lower back pain.
On 13 March 2023, the claimant was complaining of headaches (now consistent and increasing) and neck pain (affects focus and memory). An MRI of the head showed no abnormality.
After a holiday at her father’s place on 10 July 2023 the claimant was still getting buttock pain in the left thigh when sitting and headaches.
On 1 August 2023 the claimant had seen a physiotherapist and believed her hip pain was related to her car accident and needed a letter of support and referral (Doug Coleman) for chronic pain.
The claimant reported vertigo, hip, back and neck pain with numbness in her left hand and arms on 16 October 2023.
On 13 November 2023 the claimant reported the right shoulder dislocation (which she herself had relocated and physiotherapy was suggested. The claimant returned, had not had physiotherapy and said her shoulder ached at night and felt unstable.
On 29 January 2024 the claimant consulted Dr Moore with the MRI results (degenerative C spine and potential C6 nerve root impingement). The claimant was referred to Dr Seare for neck pain. The referral letter does not refer to the car accident as the source of the pain. Neck pain continued an on 25 March 2024 the claimant requested a left C6 nerve root injection.
There are a number of allied health requests (AHRR). The first for physiotherapy refers to left leg sciatic pain, chest pain, knee pain and neck stiffness but not shoulder problems. There are four others and none of them refer to shoulder pain, but they do include treatment for neck and lower back issues with some symptoms into the lower and upper limbs.
Handwritten physiotherapy notes[7] do not indicate any shoulder problems on the pain diagram oar in the notes themselves. There is neck, head, lower back, buttock and leg pain indicated.
[7] Page 391 of the claimant’s bundle.
Notes from Switch physiotherapy (Peter Xenos) between March 2022 and April 2023 also do not include any reference to shoulder pains. At the first consultation there were complaints of and treatment to the lower back and left knee. On 14 March 2022 at the second attendance the claimant continued to complain of sciatic and knee pain, but her chest pain was feeling better. The neck and upper trapezius were the subject of complaints on 21 March 2022 but on 21 April 2022 the claimant said only her sciatic pain was causing problems. In later months the neck and lumbar spine were treated.
Insurance company rehabilitation reports from On Track Occupational Therapy commence on 2 March 2022 referring to T4 spinal fracture, vertebral fracture and rib fracture and refer to pain in the sternum, cervical, thoracic and lumbar spine. The non-compensable right wrist fracture is mentioned in the third of these reports (6 July 2022) along with back pain.
In the fifth report (7 September 2022) the claimant complained of lower back and neck pain. There were 15 of these reports provided to the insurer and there is no complaint of shoulder pain in any of them. There were ongoing complaints of back and neck pain.
Medico-legal reports
The claimant relies on a report from Dr Bodel dated 28 February 2023.
Dr Bodel has a history of the accident and notes the force of the collision sent the claimant’s car into the grass median strip and trees and that side and front airbags deployed. The claimant’s daughter was in the car with her, and they were both taken to Manning Base Hospital.
The claimant reported that her chest wall pain has settled, and her lower back pain has also eased. She complained of headache and neck pain, right shoulder and arm pain, interscapular pain and lower back pain and pain in both legs.
Dr Bodel examined her neck and noted reduced range of motion more so to the left. He found restricted movement in all six planes of motion in the right shoulder but no clinical signs of radiculopathy. There was guarding in the lower back and restricted range of motion. There were no clinical signs of radiculopathy.
Dr Bodel found:
(a) diagnosis-related estimate (DRE) II 5% in the cervical spine due to dysmetria and guarding;
(b) DRE II 5% for the thoracic fracture;
(c) DRE II 5% due to guarding and asymmetry of movement in the lumbar spine, and
(d) a 2% WPI for the right shoulder impairment.
The total WPI was 17%.
The insurer relies on a report from Dr Keller, occupational physician dated 8 March 2024.
Dr Keller has a history of the accident and that the claimant was taken to hospital by police car. The claimant said she had immediate pain in her chest and right lower leg.
He has a history of the treatment she received including three months of acupuncture and massage and three to four months of exercise physiology and hydrotherapy around May 2022. He also noted counselling in 2022 until August 2023.
Dr Keller notes the brain MRI in April 2023 (normal) and the cervical spine MRI in December 2023 (disc bulges at C5/6 and C6/7 with no nerve root compression).
He has a history that the claimant has returned to all work duties except deep tissue massage.
The claimant reported no previous back complaints, previous kidney problems, a fractured wrist as a child (twice) and a fractured great toe in 2013.
The claimant reported constant neck pain with headaches, reduced feeling in her left and right hand and a feeling of weakness. She had episodes of dizziness in 2023. Back pain resolved by October 2023.
The claimant’s neck movements were full and symmetrical, reduced sensation in all fingers on the left hand but otherwise normal in the right hand, both arms and shoulders. There was a full range of shoulder motion including internal rotation. In the lower back and thoracic spine there was a full range of motion and no neurological signs and no non-verifiable complaints.
Dr Keller noted, but did not put to the claimant, previous complaints of right hip and sciatic pain, carpometacarpal osteoarthritis and plantar fasciitis.
In a separate report Dr Keller found a 5% WPI for the transverse fractures of L4 but no impairment currently for the neck or shoulders.
The claimant and the insurer rely on a report from Dr Anderson, psychiatrist dated 1 March 2023. He has a history of the accident in considerable detail along with the claimant’s immediate treatment and notes her emotions and the shock of the accident. Dr Anderson diagnosed post-traumatic stress disorder and assessed WPI at 6%.
Other assessments
Medical Assessor Smith examined the claimant on 14 June and issued his decision on 21 June 2024. He was asked to assess the claimant’s WPI for her psychiatric injury. He too has a detailed history of the accident, the treatment and the claimant’s return to work. He noted pre-accident symptoms of stress and anxiety in the context of work.
Medical Assessor Smith diagnosed a post-traumatic stress disorder in partial remission. He assessed WPI at 6% to which he added 2% for the effect of treatment.
RE-EXAMINATION FINDINGS FROM MEDICAL ASSESSOR GORMAN
History
Pre-accident medical history and relevant personal details
Ms Winn is 51 years of age and is right hand dominant.
She works in remedial massage 20-25 hours per week in Bondi, NSW.
She attended one year university and stopped. She completed a training course in remedial massage as well as childbirth education. She had been working in both jobs prior to the subject motor accident.
She lives with her partner. She has one daughter aged 9 years.
She is a non-smoker and has alcohol two to three times per week.
Past Injuries and health
She has been documented to have hydronephrosis of the right kidney which is non-functioning.
In 2013 she had a right foot first metatarsal fracture with no ongoing problems.
On 16 April 2021, she attended Dr Moore for back and buttock pain. She said there was no numbness. She was treated with anti-inflammatory medication and physiotherapy.
On 19 October 2021, she attended Dr Moore for osteo arthritis of the right thumb carpometacarpal (CMC) joint.
History of the motor accident
On 23 January 2022, Ms Winn was the driver of a Nissan Qashqai wearing a seat belt. Her daughter was in a booster seat in the back on the passenger side. She was travelling on the Pacific Highway south bound towards Sydney in a 110kmph zone.
A car from a side road on her left failed to stop at a stop sign and collided into the front of her car. Her car was spun and ended up on grass in the median strip. Air bags were deployed, and the windscreen smashed.
Ms Winn said her nose hit the air bag and became red and swollen. She was taken to Manning Base Hospital.
History of symptoms and treatment following the motor accident
The claimant said she had immediate chest pain following the accident, as well as neck pain, back pain and bruising of her right leg. Investigations at Manning Base Hospital showed a displaced sternal fracture and L4 transverse process fracture. She had cervical spine tenderness, but a CT scan showed no fracture of the cervical spine. She had right knee pain and pelvic tenderness. These too were investigated but there were no fractures.
Ms Winn complained of tingling in both hands affecting the fourth and fifth fingers. Examination did not show any focal neurological signs. She had an MRI of the cervical spine which did not show any acute trauma. She was discharged from hospital after four days.
The consulted with her usual GP Dr Moore on 8 February 2022. She had chest pain, neck pain, right shoulder pain and right rib cage pain.
She had treatment of physiotherapy, hydrotherapy, and acupuncture.
Details of any relevant injuries or conditions sustained since the motor accident
On 24 April 2022, Ms Winn fell on her right hand and fractured the base of her fifth metacarpal. She attended Prince of Wales Hospital and was treated with a cast followed by physiotherapy. She said she made a full recovery from that injury.
On 13 November 2023, Ms Winn dislocated her right shoulder when she fell whilst
ice-skating. She stated she “popped it [back] in”. She had an X-ray of the right shoulder on 23 November 2023, due to ongoing symptoms which did not show any fractures. She did not have further problems after that.
Current state
Current symptoms
Ms Winn complains of numbness radiating down both arms to mainly the fourth and fifth fingers but often affecting the whole hand. It comes and goes, and the right is worse than the left. She says the numbness sensation radiates down from the neck and shoulders.
She has constant daily headaches in the late morning and early afternoon. She sees a vestibular physiotherapist for this. She gets relief after the sessions for a couple of days.
Any chest and thoracic pain she had, has resolved.
Ms Winn complains of a shooting pain down the right leg to the foot from the lumbar spine with hotness in the right foot. Physiotherapy has helped this. This right leg pain has worsened in the last three to four months.
The right shoulder can have a “pinching” nerve pain and swimming helps this.
Her right knee pain has resolved as has her pelvic pain.
Current and proposed treatment
Ms Winn does not take medications regularly.
She is waiting for approval from the insurer to have more physiotherapy sessions. She exercises at home regularly.
Dr Moore has given her a referral to a neuropsychologist which is pending insurer approval.
CLINICAL EXAMINATION BY MEDICAL ASSESSOR GORMAN
General presentation
Ms Winn is 162cm in height and weighs 48.6kg.
She was observed to walk in and out of the examination room with a normal gait.
Cervical spine
There was minimal tenderness in the cervical spine. Range of movement was measured at:
(a) flexion and extension reduced by three quarters;
(b) lateral rotation reduced by three quarters on both sides, and
(c) lateral flexion reduced by three quarters on both sides.
There was no muscle guarding observed during the course of the examination.
Neurological examination revealed:
(a) no loss or reduction of reflexes – all were brisk, present and equal;
(b) no weakness or loss of power evident on testing;
(c) no muscle atrophy evident and the circumference of both the upper arms and forearms were equal on both sides, 10cm above and below the elbow crease;
(d) nerve root tension signs were negative, and
(e) while the claimant complained of “tingling and numbness” over both upper limbs in a generally global distribution (but worse in both palms) there was no reduction or loss of sensation on testing.
Thoracic spine
There was no tenderness in the thoracic spine.
Range of movement was normal in all planes and there was no dysmetria.
There were no radiating chest symptoms or complaints of numbness or tingling. There was no muscle guarding observed.
Lumbar spine
Ms Winn was tender in the lumbar spine and was adamant she had back pain. She said to me “what about the transverse process fracture at L4 – everyone ignores it.” Movements were measured as follows:
(a) flexion and extension were normal, and
(b) lateral flexion was normal on both sides.
There were complaints of radiating numbness down the right leg to the foot.
There was no muscle guarding.
Neurological examination revealed:
(a) no loss or reduction of reflexes – all were brisk, present and symmetrical;
(b) no weakness or loss of power evident on testing;
(c) no muscle atrophy was evident and the circumference of lower limbs was equal on both sides, at the thigh and at the calf;
(d) the straight leg raise was achieved at 90 degrees on both sides without complaint. Nerve root tension signs were negative, and
(e) while the claimant complained of “numbness” over both lower limbs this was in a global distribution there was no reduction or loss of sensation on testing.
Upper extremities
There was no local tenderness in either shoulder and no atrophy or wasting of any of the muscles of the shoulder girdle. Ms Winn could easily reach her occiput and the spinous process of T7 on both the left and right sides.
The active range of shoulder motion measured with a goniometer were full and normal as outlined below.
Shoulder movement Right (degrees) Left(degrees) Flexion 180 180 Extension 50 50 Adduction 50 50 Abduction 180 180 Internal rotation 80 80 External rotation 90 90
Lower extremities
There was normal alignment of the pelvis with no leg length discrepancy. There was no tenderness of the pelvis.
Both hips displayed a normal range of movement.
There was no effusion in the right or the left knee. There was no ligamentous instability in either knee. Clinical signs of meniscal injury were negative. Both knees had a normal range of motion from 0-140 degrees.
There was no restriction of motion in the ankles and no other abnormality found.
Chest and ribs
There was no tenderness over the sternum and right rib cage.
She had normal breathing with no discomfort on air entry and chest movement was normal.
Consistency
Ms Winn was pleasant, cooperative and consistent throughout the course of the examination.
Summary of relevant radiological and medical imaging and other investigations
An X-ray of the left ribs and chest on 6 August 2020 reported that no displaced rib fracture was seen.
An MRI of the brain on 5 April 2023 reported that no focal intracranial abnormality is detected.
An X-ray of the right shoulder on 23 November 2023 reported no fracture, subluxation or dislocation and no other abnormality was noted.
An MRI of the cervical spine on 22 December 2023 showed degenerative disc disease at C5/C6 and C6/C7. There was moderate foraminal narrowing at C5/C6, with potential C6 nerve root impingement. There was no neural impingement elsewhere.
CAUSATION AND DIAGNOSIS
Based on the contemporaneous hospital notes[8] and the claimant’s claim form, the Panel is satisfied the claimant sustained the following injuries:
(a) a fractured sternum and fourth rib fracture along with bruising and pain around her ribcage;
(b) a soft tissue injury to the hips (bruising) and pelvic area, and
(c) a soft tissue injury to the right knee and right ankle.
[8] Page 26 of the claimant’s bundle.
The discharge summary from Manning Base Hospital records on the first page[9] the diagnosis of a T4 right transverse fracture with no mention of a lumbar fracture. However later on in that discharge summary[10] there is a report from a radiologist of an abdomen and pelvic CT scan which clearly reports “a mildly displaced fracture through the inferior portion of the right L4 transverse process.”
[9] Page 28 in the claimant’s bundle.
[10] Page 32 of the claimant’s bundle.
The chest X-ray performed at the hospital did not include any reference to a T4 thoracic fracture but did identify a “minimally displaced anterior fourth rib fracture”.
In his certificate of fitness dated 22 February 2022[11] Dr Moore diagnoses a T4 fracture however in his 2 March 2022 certificate of fitness he diagnoses an L4 fracture.[12] Dr Bodel’s report awarded a 5% WPI for a T4 thoracic fracture and Dr Keller refers to an L4 fracture.
[11] Page 196 of the claimant’s bundle.
[12] Page 200 of the claimant’s bundle.
The Panel is satisfied that the claimant sustained a transverse fracture of her L4 vertebrae but that she did not sustain any thoracic fracture in the accident. The Panel accepts the claimant could have and did sustain a soft tissue injury to the thoracic spine along with a fractured sternum and fractured fourth rib.
There is no injury reported in the claim form to the neck and neck pain does not appear in the GP notes until over a year after the accident. Hospital notes record cervical spine tenderness and the cervical spine was investigated with radiology. The Panel has considered the mechanism of the accident and considers the forces involved in this high-speed accident could have caused an injury to the claimant’s neck and that the accident did cause a soft tissue injury to the claimant cervical spine. In the light of Medical Assessor Gorman’s clinical findings and the degree of impairment found by the Panel, the Panel does not propose to deal further with the issue of causation of this injury.
The insurer has raised an issue about causation of any right shoulder injury. The Panel notes the right shoulder was not mentioned in the hospital notes and was not listed in the claimant’s claim form. There is no record of right shoulder pain in the GP records until 13 November 2023 after the ice-skating incident. The mechanism of the accident and the fact the claimant was a driver with the seat belt passing over her right shoulder could give rise to a right shoulder injury. On the basis of the claimant’s history, the Panel is satisfied the claimant did sustain a soft tissue injury to her right shoulder.
The absence of right shoulder complaints for over a year after the accident (first reported to Dr Bodel in February 2023 and first recorded by Dr Moore almost two years after the accident) suggests the claimant’s soft tissue right shoulder injury with not a significant injury. Noting the findings made by Medical Assessor Gorman in his re-examination of the claimant the Panel does not propose to deal further with the issue of causation of this injury.
ASSESSMENT OF IMPAIRMENT
There is no issue in this matter about whether Ms Winn’s impairment is permanent and capable of assessment. The Panel notes it is now three years since the accident and the documentation indicates her symptoms and signs have remained stable for at least 12 months. No further specific treatment is planned or needed.
Spinal impairment
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the DRE method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a) cervical;
(b) thoracic, and
(c) lumbar.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
A category DRE II 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.
An additional DRE II category is “transverse … process fracture with displacement of fragment, healed, stable.”
A DRE category III impairment based on a finding of radiculopathy as set out in cl 6.138 based on there being two or more of the following clinical signs are found on examination:
(a) loss or asymmetry of reflexes (see Table 6.8 in the Guidelines);
(b) positive sciatic nerve root tension signs (see Table 6.8);
(c) muscle atrophy and/or decreased limb circumference (see Table 8);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Ms Winn complains of injury and symptoms in the three regions of her spine. Each will be considered in turn:
(a) in the cervical spine Ms Winn sustained a soft tissue injury from which she appears to have largely recovered. She complains of pain but has no dysmetria or guarding. The bilateral numbness in the arms and hands do not meet the definition of non-verifiable radicular symptoms as they are intermittent and are general and therefore do not follow a specific dermatome or nerve root distribution. Ms Winn does not have any of the signs of radiculopathy. Ms Winn’s cervical spine injury satisfies a DRE I finding giving her a WPI of 0%;
(b) in the thoracic spine the claimant has no symptoms, and she has recovered from any soft tissue injury she sustained leaving no assessable impairment, and
(c) in the lumbar spine Ms Winn has none of the five signs of radiculopathy and does not qualify for a DRE III assessment. She has sustained an L4 transverse process fracture which attracts a DRE category II finding of 5% WPI. Ms Winn had no guarding or dysmetria but some symptoms which could be classed as non-verifiable radicular symptoms, however cl 6.132 provides that multiple impairments within one spinal region must not be combined and therefore the claimant cannot have a greater than 5% impairment in her lumbar spine.
Shoulder impairment
The Panel has found that the claimant sustained a right shoulder soft tissue injury.
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand.
There are several methods of assessment provided for:
(a) amputation (Part 3.1b);
(b) sensory loss of the digits (Part 3.1c);
(c) abnormal range of motion (Part 3.1d);
(d) peripheral nerve disorders (Part 3.1k);
(e) vascular disorders (Part 3.1l), and
(f) other disorders (Part 3.1m).
In Ms Winn’s case, the Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with Part 3.1d. The abnormal range of motion requires the measurement of six functional units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4 Guides.
On re-examination by Medical Assessor Gorman there was no restriction of motion. The claimant had a full and normal range of motion in both her shoulders. The claimant therefore has a 0% WPI.
Sternum and chest
The claimant sustained a fracture of her sternum and the fourth rib. At the re-examination she made no complaints of symptoms in the chest.
The Panel notes that cl 6.23 says that “uncomplicated healed sternal and rib fractures do not result in any assessable impairment.” As the claimed injuries to the chest (including the fractures) have resolved, there is no impairment arising from those injuries.
Pelvis, hips and legs
The Panel has found that the claimant sustained soft tissue injuries to her hips, pelvis, right knee and ankle including bruising.
At the re-examination with Medical Assessor Gorman there was no abnormality detected in the pelvis or the lower limbs therefore there is no assessable impairment of these injuries.
CONCLUSION
The Panel finds that the claimant has a 5% WPI based on the following:
(a) lumbar spine 5% - DRE II;
(b) thoracic spine recovered – no assessable impairment;
(c) cervical spine 0% - DRE I;
(d) right shoulder 0%;
(e) pelvis / hips recovered – no assessable impairment;
(f) right knee recovered – no assessable impairment;
(g) right ankle recovered – no assessable impairment;
(h) fractured sternum recovered – no assessable impairment, and
(i) fractured rib recovered – no assessable impairment.
A finding of 0% or “no assessable impairment” does not mean that the injuries did not occur or that the injury did not cause any symptoms over time. It simply means that as the injuries have healed and the claimant has recovered from them, there is no WPI that the Panel can allocate to them.
While the claimant has come to the same conclusion as Medical Assessor Woo, that is that the claimant does not have a WPI of greater than 10%, the Panel has found a different percentage and therefore must revoke his certificate.
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