Yang v AAI Limited t/as GIO
[2022] NSWPICMP 488
•30 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Yang v AAI Limited t/as GIO [2022] NSWPICMP 488 |
| CLAIMANT: | Weijuan Yang |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 30 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical dispute about whole person impairment (WPI) and Review of Medical Assessor’s (MA) assessment of 9% WPI under section 63 of the 1999 Act; claimant was hit from behind while stationary in traffic; claimant reported immediate pain in the calf but development of pain in neck, back and both shoulders within a few days; MA found 0% for neck, 5% for lower back and shoulders 2% each based on the Nguyenv Motor Accidents Authority of New South Wales and Anor principle (shoulder impairment was due to the neck injury) but inserted the shoulder impairment into the table of impairments under neck; issue in dispute was neck impairment and shoulder impairment; re-examination required; Held – claimant’s WPI was 7% - 5% for the lower back, 0% for the neck but 1% for each shoulder both of which had improved in functionality (and increased range of motion) since original assessment; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Assessor Assem dated 3 May 2022. 2. Certifies that the degree of Weijuan Yang’s permanent impairment resulting from the injuries caused by the motor accident on 28 July 2017 is not greater than 10%. |
STATEMENT OF REASONS
Introduction
Ms Weijuan Yang was involved in a motor accident in the afternoon of 28 July 2017. She was driving along Pitt Street in the suburb of Holroyd when she came to a stop in traffic near the corner of Ledger Road. The vehicle behind did not stop and a collision occurred. The force of the collision pushed the claimant’s car into the car in front.
The claimant says she injured her neck, back and both shoulders in the accident and made a claim for non-economic loss and economic loss damages against GIO, the third-party insurer of the vehicle that hit hers.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Ms Yang referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Assem determined Ms Yang did not have a WPI of greater than 10% and Ms Yang lodged an application with the Commission seeking a review of the assessment.
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 President has convened this Panel.
Legislative framework
General
Ms Yang’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 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 1 October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for assessment[2].
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Assem’s; further medical assessments, and the Review of medical assessments by this review panel[3].
[3] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment 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 133. The current version of the Guidelines is Version 1 which is effective fromThe relevant chapters and parts of the Guides and the Guidelines include:
(a) chapter three (AMA 4 Guides) and cls 1.111 – 1.151 of the Guidelines – the assessment of the cervico-thoracic spine;
(b) chapter three (AMA 4 Guides) and cls 1.111 – 1.151 of the Guidelines – the assessment of the lumbo sacral spine, and
(c) chapter three – (AMA 4 Guides) and cls 1.47 – 1.67 of the Guidelines the assessment of the upper limbs.
An injury sustained in the accident may lead to impairments in the part of the body injured as well as impairments in other parts of the body. For example, if any impairment to the shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351 that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
Assessment under review
On 29 April 2022, Assessor Assem assessed the claimant and on 3 May 2022 he issued his determination.
He was asked to assess the claimant’s cervical and lumbar spine (soft tissue injuries) as well as soft tissue injuries to the claimant’s left and right shoulder.
Assessor Assem took the following history:
(a) the claimant is 53 years of age, was not working at the time of the accident and is the single parent of a 12 year old daughter;
(b) she has a “long history of neck pain” commencing in 2013;
(c) on 8 March 2016 there was a complaint to her doctor, Dr Lam of neck and occasional low back pain;
(d) on 23 June 2016, Dr Lam reported deteriorating neck pain and diagnosed radiculopathy on the basis there was bilateral upper limb tingling;
(e) the accident involved a rear end collision forcing her into the vehicle in front. The claimant was wearing a seatbelt, the airbags did not deploy and there was no impact with the interior cabin;
(f) the claimant developed immediate pain in the calf but not elsewhere, ambulance attended but the claimant was not taken to hospital;
(g) over the next few days neck pain developed radiating to both shoulders with pain across Ms Yang’s lower back radiating down the right leg and right calf. She saw her general practitioner (GP) on 1 August 2017 complaining of neck, bilateral shoulder and back pain;
(h) on 1 September a medical certificate was completed diagnosing post-traumatic, whiplash, possible carpal tunnel, soft tissue injuries to the chest, both shoulders, lumbar spine and left sacroiliitis;
(i) Ms Yang saw a rehabilitation physician (Dr Sun) who arranged a bone scan and MRI of the brain and neck;
(j) Dr Woo assessed the claimant’s shoulder complaints and arranged MRI’s which revealed pathology in both shoulders, and
(k) nerve conduction studies performed in November 2019 confirmed bilateral median nerve compression.
The claimant’s current complaints included:
(a) constant neck discomfort with pain radiating to both shoulders and her skull and with pins and needles in both hands and both shoulders;
(b) pain in both shoulders associated with restriction in movement, and
(c) constant pain across her lower back, radiating down the right thigh (no paraesthesia or weakness).
Ms Yang reported taking Panadeine Forte and Celebrex for her pain as well as Nexium and Stemetil.
Assessor Assem’s examination revealed:
(a) cervical spine – some tenderness but no muscle guarding or spasm, symmetrical restriction of motion to three-quarters of normal. Limb reflexes were brisk and symmetrical, power and tone were normal and sensation was globally reduced in both arms;
(b) lumbar spine – tenderness but no muscle guarding or spasm. There was restriction of movement, but it was symmetrical. Knee and ankle joint reflexes were brisk and symmetrical, power tone and sensation were normal. There was no sign of muscle atrophy, and
(c) both shoulders were said to be tender but without crepitation. Range of motion was tested and was consistent apart from abduction (although when considering the table and the figures it may be this was adduction that improved with testing). There is no reference to a goniometer.
Assessor Assem reviewed the documentation and the imaging studies.
He made a finding of injuries to the neck and lower back noting that there was referred pain in both shoulders, but he appears not to have found any frank or specific injury to the shoulders.
In terms of assessment, he found:
(a) cervical spine – DRE II = 0%;
(b) shoulder impairment due to neck complaints 2% each shoulder = 4%, and
(c) lumbar spine – DRE II = 5%.
The table which he included only contained findings for the neck (4%) and the lower back (5%). He included the shoulder impairment of 4% (correctly referencing the shoulder impairment figures from AMA 4 Guides) in that part of the table concerning the neck injury apparently on the basis that the impairment to the shoulders was caused by the neck injury.
submissions
Claimant’s submissions
The claimant submitted that the following errors were made in the assessment:
(a) the finding of DRE I – 0% for the neck in the body of the decision was inconsistent with the table which identified a 4% impairment for the cervical spine;
(b) the table does not include any mention of the shoulder impairments the assessor found;
(c) there is no reference to a goniometer therefore he must not have used one which is in breach of the guidelines;
(d) his reasons are not adequate and are contradictory, and
(e) he erred in his finding of causation. It is not clear from the submissions what particular finding of causation the claimant is referring to. The assessor found injury to the neck and lower back but not the shoulders therefore it is assumed the claimant is referring to the shoulders. The assessor found impairment from the shoulders but not injury to the shoulders.
Insurer submissions
The insurer responded by saying:
(a) the assessor clearly found an injury to the neck assessed at 0% but that the claimant’s shoulder motion was impaired due to the neck injury (in accordance with the Nguyen principle) and this attracted a 4% impairment (2% for each shoulder). It was open to the assessor to find there was no frank injury;
(b) a goniometer does not have to be used it is a matter for the assessor’s clinical skill and judgment, and
(c) the finding of “relatively consistent” implies that there was some inconsistency which meant Assessor Assem could have rejected the range of motion method completely and found 0% WPI (and not 4%).
The insurer’s submissions lodged in response to the original application for medical assessment dealt with each of the listed injuries as follows:
(a) cervical spine – Dr Keller reported full symmetrical range of motion with some inconsistency and that the claimant’s radiology was generally normal. He drew attention to the previous complaints of neck pain;
(b) lumbar spine – again Dr Keller observed a full range of motion with some inconsistency. He drew attention of previous complaints of back pain from the records in 2013 – 2016, and
(c) both shoulders – Dr Keller observed inconsistency, but he recorded normal range of motion in the left and right shoulders. He also noted the claimant acknowledged pre-existing carpal tunnel problems and the insurer drew attention to the previous medical records relating to the carpal tunnel issues.
Procedural matters
It appears that there are the following issues for determination:
(a) Does Ms Yang have symptoms in her shoulders?
(i)Are these symptoms caused by a frank or specific injury to her shoulders in the accident?
(ii)Are these symptoms caused by or related to the claimant’s neck injury?
(iii)What is the impairment in the shoulders?
(b) In the light of the pre-accident complaints in the back and neck, the degree of WPI in relation to the injury caused by the accident.
Review of the evidence
The claimant has lodged a bundle of document with over 500 pages. The insurer has lodged a bundle with over 60 pages. Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[5] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived. Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. [23] As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[5] [2022] NSWSC 1079.
While the current proceedings are Review Panel proceedings involving a legal Member of the Commission and two Medical Assessors, the Panel is of the view that the principles in Rahman are relevant. While the Panel has reviewed the documentation in this matter it does not intend to summarise and mention all of them.
Claim forms and related documents
The claim form was signed by the claimant as true and correct on 1 August 2017.
The claimant says she had no previous claims and identified injuries to her neck, shoulders back and shock. She nominated Dr Xu in Parramatta and Dr Wong in Eastwood as her treating doctors. She disclosed “neck and back pain in 2015” as a relevant condition.
Dr Wong completed the medical certificate on 1 September 2017 noting this was the claimant’s first visit to him. He identified a post-traumatic stress disorder, whiplash injury, cervical radiculopathy, possible carpal tunnel syndrome in both wrists and a soft tissue injury to the chest wall, both shoulders as well as lumbar spine sacroiliitis.
Treatment records and reports
While the claim form appeared to minimise the previous complaints (neck and back pain in 2015), the claimant has been upfront when examined by a number of doctors about the extent of her previous problems. For that reason, the Panel does not intend to repeat all the entries in the GP’s notes.
Argyle Street Medical Centre
The claimant’s first-in-time GP is the Argyle Street Medical Centre in Parramatta. The notes from this practice commence on 12 March 2010.
On 27 February 2013, the claimant complained of “neck pain long standing worse now”. She was tender and the range of neck motion was reduced.
On 19 January 2014 Ms Yang is recording as having acute lower back pain after the gym workout and she was experiencing insomnia. She was referred for an X-ray.
On 21 August 2015 there was another episode of lower back pain recorded after “pushing a fridge”. Another X-ray was done which was said to show “more degeneration”.
Parramatta Medical Centre
On 8 March 2016 the claimant saw Dr Lam at this practice with bilateral hand pain and pins/needles usually with activity. She had some aches and pains in her arms, neck pain and occasional lower back pains. A week later she returned and was referred for nerve conduction studies.
On 17 June 2016, after investigations, the claimant was diagnosed with carpal tunnel syndrome.
On 23 June 2016, Dr Xu noted the claimant complained of chronic neck pain “almost daily” and she was “certain that her neck pain is deteriorating”.
The claimant reported poor sleeping habits and was advised to take Temazepam in February 2017. She also complained of headaches and migraines on 9 June 2017.
Following the accident, the claimant first saw Dr Lam on 1 August 2017 and then several times after that with complaints of neck, back and shoulder pain. She last saw Dr Lam on 19 August 2017 at which stage the claimant moved to Dr Wong’s practice.
Rowe Street Medical Centre
It is not clear to the Panel whether the claimant’s notes from her previous practitioners were provided to the Rowe Street clinic or whether Dr Wong, Dr Sun and Dr Woo were advised of the previous issues with Ms Yang’s neck and back.
The claimant first saw Dr Wong on 1 September 2017. He refers to right calf pain being better, but that the claimant had neck, lower back and bilateral medial shoulder paraesthesia. She had “reasonable” range of motion at the neck but with pain and full range of shoulder motion on both sides but with pain on flexion and abduction.
Ms Yang saw Dr Wong about monthly after this with consistent complaints of pain.
Dr Wong supported the claimant’s application for the Disability Support Pension in
July 2019[6] and has provided a number of Centrelink medical certificates.
[6] Page 360 of the claimant’s bundle of documents.
Dr Wong referred the claimant to Dr Sun a rehabilitation and pain management physician who has written a number of letters to Dr Wong as follows:
(a) 17 March 2018 – neck shoulder, back and right leg pain and complained of heaviness in the shoulders and numbness in both arms and difficulty using chopsticks. She was not sure about her medication, had been attending physiotherapy and did not bring her MRI to the appointment;
(b) 22 May 2018 - she had been taking Celebrex and Tramadol which upset her stomach and she was prescribed Panadeine Forte instead;
(c) 19 June 2018 – recent exacerbation of back pain. She had been taking Panadol and Celebrex and was advised to continue with her supervised exercises and use of a TENS machine at home;
(d) on 17 November 2018 he referred to Dr Wong’s certificate of capacity and says that Ms Yang’s employer “Australian Unity” is asking about her work restrictions and requesting some functional tasks be identified (the Panel notes that the many histories in the proceedings suggest the claimant was not working at the time of the accident and has not worked), and
(e) 20 July 2020 – the claimant has needed Panadeine Forte four times a day and Endep but this makes her drowsy.
Dr Wong also referred the claimant to Dr Woo (orthopaedic surgeon) who wrote on
13 June 2019 advising that the claimant has multiple soft tissue injuries and needs medication and physiotherapy. He records complaints about the claimant’s neck, back and shoulders but does not mention leg pain.
Medico-legal reports
On 27 April 2020, Dr Herald (orthopaedic surgeon) provided a report to the claimant’s solicitor. He has a history of neck pain in 2013 and 2016 and a diagnosis of carpal tunnel syndrome in 2016 and back pain in 2014 after an episode at the gym.
He documented some dysmetria and tenderness as well as some dysmetria in the back. Neurologically she was normal in both upper and lower limbs.
In a separate report he found DRE II in both the neck and lower back due to the presence of dysmetria which attracted a WPI of 10% which he then deducted for a pre-existing complaint. He assessed 12% WPI on the basis of the restricted range of motion in both shoulders.
On 1 June 2020, Dr Dryson (occupational physician) provided a report to the claimant’s solicitors. The claimant complained of neck pain (and he notes the previous issues with her neck) pain in the left shoulder with decreased strength in the left arm and numbness and intermittent pain in the right shoulder. The claimant also reported low back pain radiating down the right leg. He diagnosed a whiplash associated disorder, subacromial bursitis in both shoulders, an aggravation of a pre-existing lumbar condition and carpal tunnel syndrome in the left hand. He found WPI of 5% for each of the neck and the lower back and deducted nothing for the pre-existing condition. He found 6% for the right shoulder and 9% for the left which gave a total WPI of 22%.
Dr Silva provided a report to the insurer dated 14 May 2018. Ms Yang said she had not driven since the accident. Dr Silva has a history of immediate calf pain then a break of two days before neck pain on the left side of her neck began with shoulder pain and back pain and she saw Dr Lam followed by Dr Sun. She had 30 sessions of physiotherapy and was taking Celebrex, Panadeine Forte and Nexium daily.
Ms Yang complained of neck pain, interscapular pain and low back pain and reported pre-accident neck pain, carpal tunnel and low back pain.
On examination of the neck Dr Silva found dysmetria, restricted shoulder motion but no evidence of radiculopathy. He considered Ms Yang satisfied criteria DRE II for her neck injury and DRE I in the thoracic spine. He did not assess the lower back or the shoulders. He provided a supplementary report concerning ongoing pain management consultations dated 13 August 2018.
Dr Silva provided an updated report on 27 January 2021. He noted the claimant remained unemployed and on benefits, that she was having physiotherapy and acupuncture treatment from her GP and taking medication including Panadeine Forte, Celebrex, Endep and Nexium. He noted her complaints of neck pain across the shoulders (more left than right) and back pain and records that Ms Yang had returned to driving.
On examination there was some non-symmetrical restriction of motion and Ms Yang complained of left sided neck pain radiating to her arm and fingertips. There were no signs of radiculopathy. Shoulder movements were normal other than flexion and abduction in both shoulders was limited by 10 degrees.
Dr Silva categorised the claimant as DRE II (5% WPI) for her neck injury but gave her nothing for any shoulder impairment as in his view this was “double dipping” (the Panel notes this is contrary to the Nguyen principle). He assessed the claimant’s lumbar spine at 0% WPI.
Dr George, psychiatrist examined the clamant for the insurer and provided a report dated 8 November 2018. He has a history of the accident and then a delay of three or four days before the claimant saw her doctor. He noted Ms Yang was late for the appointment and was therefore a bit dishevelled but that she bounded up the stairs displaying no problem with movement. He found no psychiatric illness present.
Dr Keller, occupational physician provided a report to the insurer on 9 November 2020. He has a history of immediate right calf pain with neck, back and shoulder pain coming on later which is not constant but is severe. He recorded a “full symmetrical range of motion” without spasm guarding or signs of radiculopathy in the neck and lower back. He notes some possible carpal tunnel symptoms due to altered sensation in the fingers of both hands radiating up to the shoulders (not down from the shoulders). He found no current impairment.
On examination, Dr Keller recorded almost full range of motion in the right shoulder but significant restriction (90 degrees when 180 is normal) in flexion of the left shoulder (the Panel notes that later he says she had full movement which suggests he may have made a typographical error in his recording of flexion). He records inconsistency between formal examination and informal observation. He was silent as to any shoulder injury but considered the claimant had aggravated or exacerbated pre-existing degenerative changes in her neck and back.
Re-examination findings
Medical Assessor Gibson conducted the re-examination on behalf of the Panel during an appointment on 4 November 2022 at 11.00am.
History given by the claimant
Pre-accident medical history and relevant personal details
Ms Yang was born in China where she completed high school and then, trained as an accountant. She had worked in that capacity prior to migrating to Australia in 2005. She said she had moved here to be with her family.
She had helped in her sister's clothing company and also worked as a cleaner when she first arrived, but she had not worked in any paid employment since the birth of her daughter, now aged 12.
In January 2020 she completed an online course in Aged Care, as recommended by Centrelink.
There was a history of neck symptoms over several years documented in the clinical notes of the treating GP. When asked about this, Ms Yang said that she had only had neck and back symptoms for a few days at a time and these were manageable with paracetamol. She did recall having had some physical therapy. She maintained, that at the time of the subject accident, she had no ongoing neck or low back pain.
There was no history of any previous motor accidents or work injuries and she said there were no relevant medical or surgical issues.
History of the motor accident
Ms Yang was the driver stationary at an intersection, when she was hit from behind by another vehicle and her car was then pushed into the car in front. She was wearing a seatbelt, but her airbag had not deployed, although the airbag in the vehicle at fault did go off.
The claimant did not remember making any direct impact with the inside of her car, and she recalled that she "felt okay at the time", the only discomfort being over her right calf. An ambulance came, she was assessed, but she did not require any treatment. Her car was towed and later written off.
History of symptoms and treatment following the motor accident
Ms Yang stated that it was two or three days later when she started to notice pain in her neck, shoulders, and low back. She pointed to and indicated to the assessors, the back of her neck, all over both shoulders and across the lower back.
She said that at the time she did not have a regular GP, so she visited Dr Lam, who had a practice nearby. She was referred to physiotherapy.
A friend of hers then recommended Dr Alan Wong as a practitioner who could take over her care if other GPs were not interested in seeing her with motor accident-related injuries.
She was later referred to a rehabilitation physician, Dr Sun, and she has continued seeing him regularly. He had organised imaging including a bone scan, cerebral and cervical MRI scans.
There was a later referral to orthopaedic surgeon, Dr Woo. He referred the claimant for imaging of both shoulders, her left shoulder in October 2018 and right shoulder in November 2018. No surgical intervention was advised.
There were nerve conduction studies undertaken later, in November 2019, which suggested bilateral carpal tunnel syndrome.
There have been no further accidents or incidents or the development of any relevant condition since the accident.
Current symptoms
Ms Yang reported constant posterior neck pain of variable severity, which may be midline, or at times paracentral on the left or right, or both. She said the neck pain had been particularly severe over the last few days.
On specific questioning as to whether the neck pain spreads anywhere, she indicated to the back of her head (causing headache) and to both shoulders, spreading all over the shoulder and trapezius regions bilaterally. She said at times there are pins and needles in a similar distribution.
She complained of numbness in both upper limbs, this had a global distribution all over the arms, with no specific nerve root or peripheral nerve distribution evident. She said at times, she has difficulty using chopsticks, handwriting, or even carrying heavier items such as the X-rays she bought with her for the re-examination.
There was pain across the lower back, both centrally and also spreading to the right buttock, and the back of right thigh and right calf.
Current and proposed treatment
Ms Yang takes Tramadol (50mg at night) and this was commenced a month ago. She said it was prescribed by the GP but recommended by Dr Sun following her last visit in July this year.
She says she also takes two Panadeine Forte tables a day (prescribed by Dr Sun) as well as Celebrex 200mg and Esomeprazole 40mg which she has been taking daily for the last four years.
Clinical examination
General presentation
Ms Yang was right-handed. She was pleasant and cooperative and spoke some English, although did require significant input from the interpreter.
All measurements were taken using a goniometer or inclinometer.
Ms Yang presented in a straightforward fashion and appeared to be making a genuine effort throughout the examination.
Cervical spine (cervicothoracic)
On examination of the neck, there was central and slightly right-sided tenderness and also tenderness on deep pressure to the trapezius regions bilaterally. Neck movements (flexion, extension, lateral flexion to both sides and rotation left and right) were to full normal range in all planes. There was no asymmetry (dysmetria), muscle spasm or guarding observed during this part of the examination.
Upper extremity
On examination of the upper limbs, circumferential measurements are consistent with right-hand dominance, bother upper arms measuring 27 cm, the right forearm measured 24 cm and the left forearm measured 23.5 cm. There was normal sensation, power, and reflexes on both sides.
On examination of the shoulders, active movements were measured with a goniometer and were consistent on repetition as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
160 °
170 °
Extension
30 °
50 °
Internal Rotation
90 °
90 °
External Rotation
70 °
70 °
Abduction
170 °
170 °
Adduction
40 °
40 °
The Panel notes that the claimant demonstrated a greater range of motion when examined and compared to the examination of Dr Herald for example in 2020. This reflects the gradual progression and improvement in the claimant’s condition.
Lumbar spine (lumbosacral)
On examination of the lower back, there was tenderness centrally, but more so on the right paravertebral region.
Forward flexion was normal range but extension was half-normal (therefore dysmetria). Lateral flexion was in the normal range bilaterally as was rotation on both sides. There was mild guarding on extension. Neural tension signs were negative bilaterally, straight leg raise was 70 degrees bilaterally.
Lower extremity
On examination of the lower limbs, circumferential measurements were equal (thigh 38cm, calf 34cm), so there was no muscle wasting. There was normal lower limb power, sensation, and reflexes bilaterally.
Summary of relevant radiological and medical imaging and other investigations
The imaging was reviewed but it was not new imaging, and the findings of the imaging are reflected accurately in the reports.
FINDINGS
General
Ms Yang is a 53-year-old woman who was involved in the subject accident on
28 July 2017. There were no immediate neck, shoulder or low back complaints, but there was some right calf discomfort, with onset of neck, bilateral shoulder, and low back pain several days later. This is medically plausible in the clinical judgment of the medical members of the Panel.
The impact from the vehicle behind hers was sufficient to propel the claimant into the vehicle in front. Ms Yang has been consistent in her complaints of pain in the neck since the accident. The Panel is satisfied that the claimant sustained a soft tissue injury to her cervical spine in the accident. While the Panel notes the claimant had some pre-existing cervical spine complaints which were apparently chronic and had some restriction of movement of the neck, in the light of the WPI finding below, there is no need to make a finding in respect of the pre-existing impairment.
The Panel is also satisfied the claimant sustained a soft tissue injury to her lower back in the accident. The radiology of 25 October 2018 identifies no nerve root compromise or bony injury. The claimant has had previous complaints of lumbar spine pain and was X-rayed in 2014 and 2015 which revealed minimal degenerative changes. The complaints of back pain appear to be following incidents such as in the gym and pushing a refrigerator. There is no evidence of chronic lumbar spine pain. While there is objective evidence of pre-accident lumbar spine issues, there is no objective evidence of any pre-accident impairment as is required by cls 1.31 – 1.33 of the Guidelines.
The claimant has consistently complained of shoulder problems since the accident, left more than right. There is no documented evidence of shoulder complaints before the accident. The Panel accepts that the claimant has a restriction of shoulder movement and that this has been caused by the accident.
The MRIs from 2018 reveal degenerative changes and features that could indicate trauma but which are also common in a wide cross section of the community without trauma. The claimant was the driver wearing a seatbelt which would have been over her right shoulder and bearing in mind the apparent significance of the impact it is medically plausible Ms Yang has injured that shoulder and aggravated pre-existing degenerative changes in both her shoulders in the accident.
The clinical judgment of the medical members of the Panel however is that the claimant’s bilateral shoulder impairment is more likely to have been caused by the claimant’s neck injury however in the light of the improvement in the claimant’s shoulder condition and the associated degree of impairment the Panel does not intend to further engage with the issue of the particular condition that is causing the impairment.
Impairment assessment
Cervical [Cervicothoracic] spine
There are complaints of pain and symptoms, but without vertebral body compression or vertebral fracture. The claimant clearly falls within the DRE Category I.
A finding of DRE II requires:
(a) pain with guarding (there was none found on examination by Assessor Gibson) or
(b) non-uniform range of motion – dysmetria (movements were restricted but symmetrical) or
(c) non-verifiable radicular complaints defined in table 8 of the Guidelines as symptoms (shooting pain, burning sensation, tingling) 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. There were no such clinical findings based on Assessor Gibson’s examination.
Therefore, in the Panel’s view the claimant’s cervical spine injury would be assessed at DRE Impairment Category I, attracting a zero WPI.
Lumbar [Lumbosacral] spine
There are complaints of pain and symptoms in the lower back, but without vertebral body compression or vertebral fracture.
A finding of DRE II would require:
(a) pain with guarding (there was mild guarding found on examination by Assessor Gibson) or
(b) non-uniform range of motion – dysmetria (flexion was normal but extension was reduced which constitutes dysmetria) or
(c) non-verifiable radicular complaints defined in table 8 of the Guidelines as symptoms (shooting pain, burning sensation, tingling) 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. There were no such clinical findings based on Assessor Gibson’s examination.
It is therefore the Panel’s view that the claimant’s lower back injury should be assessed at DRE Impairment Category II, attracting a 5% WPI.
Shoulders
Shoulder impairment is to be undertaken using the range of motion method whereby all six planes of movement are added together to provide an upper extremity impairment (UEI) before converting to a WPI using table 3 in the AMA4 Guides.
All of Ms Yang’s movements were consistent on repetition.
Shoulder Movements
Active ROM Measured
RIGHT
UEI
Active ROM Measured
LEFT
UEI
Flexion
160 °
1
170 °
1
Extension
30 °
1
50 °
0
Abduction
170 °
0
170 °
0
Adduction
40 °
0
40 °
0
Internal Rotation
90 °
0
90 °
0
External Rotation
70 °
0
70 °
0
The total upper extremity impairment for the right shoulder is 2% which converts to 1% WPI and the total upper extremity impairment for the left shoulder 1% which also converts to 1% WPI.
Conclusion
The claimant’s total impairment is 7% WPI made up as follows:
· neck DRE I 0%
· lower back DRE II 5%
· right shoulder 1%
· left shoulder 1%
While the outcome is the same as determined by Assessor Assem (not greater than 10%) as the actual degree of WPI is different (7% versus 9%) it follows that Assessor Assem’s certificate must be set aside.
30 November 2017.
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