Zealand v Cic Allianz Insurance Limited
[2023] NSWPICMP 183
•4 May 2023
DETERMINATION OF REVIEW PANEL CITATION: Zealand v CIC Allianz Insurance Limited [2023] NSWPICMP 183 CLAIMANT: Mary Zealand INSURER:
CIC Allianz Insurance Limited
REVIEW PANEL MEMBER: Ray Plibersek MEDICAL ASSESSOR: Clive Kenna MEDICAL ASSESSOR: Chris Oates DATE OF DECISION: 4 May 2023 CATCHWORDS: MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a passenger in a bus; she was injured when she fell to the floor as the bus started to move; injuries to cervical spine; left arm and shoulder; Held – original Medical Assessment Certificate (MAC) set aside; original MAC assessed the claimant with a 10% permanent impairment caused by the motor accident; original MAC compared the “uninjured” right shoulder to the injured left shoulder when making the assessment; on review the Panel noted that the right shoulder had been previously injured in 2014 and could not be used as a baseline or comparison to assess the injured left shoulder injury; subsequent to subject motor vehicle accident, claimant had sustained a further injury to the left shoulder as a result of a fall at home; Panel found that bus accident caused a soft tissue injury to the cervical spine and a fracture to the left proximal humerus in the left arm; 8% WPI of the left shoulder and 0% WPI for the cervical spine due to the bus accident.
DETERMINATIONS MADE: MOTOR ACCIDENT INJURIES ACT 2017
WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the Certificate of Medical Assessor Ray Wallace dated 1 November 2022. The Panel issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a permanent impairment which is not greater than 10%:
· cervical spine- soft tissue injury,
· left shoulder - soft tissue, and
· left arm- fracture left proximal humerus and soft tissue injury
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
1.On 11 December 2019 Ms Mary Zealand (the claimant) boarded a bus at York Street QVB building in Sydney. As she was walking down the aisle, the bus accelerated suddenly before she could sit down. Ms Zealand lost her balance and fell injuring her neck and left shoulder and arm. After the accident Ms Zealand was taken by ambulance to Royal Prince Alfred Hospital where she remained an inpatient until 17 December 2019.
2.At the time of the accident Ms Zealand was 87 years of age and in receipt of the aged pension.
3.Ms Zealand asserts she sustained the following injuries in the accident:
1. (a) injury to the cervical spine;
2. (b) injury to the left arm; and
3. (c) injury to the left shoulder.
4.Ms Zealand has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
5.Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Zealand under the MAI Act.
6.Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
7.This dispute is in relation to whether the degree of permanent impairment sustained by Ms Zealand as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
8.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.
9.The dispute as to permanent impairment was referred to Medical Assessor
Ray Wallace. He assessed Ms Zealand on 25 October 2022 and issued a certificate dated 1 November 2022.10.Ms Zealand has sought a review of the certificate of Medical Assessor Wallace.
11.Assessor Wallace assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%.
REVIEW PROCEDURE
12.An application for review of the medical assessment of Assessor Wallace was lodged within 28 days of the date on which the certificate of was made available to the parties .
13.On 18 January 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
14.The grounds for review advanced by the claimant included that the Medical Assessor’s failure to convey reasoning for forming an expectation that the left shoulder condition would have had similar findings to the right shoulder prior to the accident when applying clause 6.51 of the Motor Accident Permanent Impairment Guidelines.
15.Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
16.The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission). Accordingly, the President’s Delegate referred the matter to this Panel to assess.
17.Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
18.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[2]
[2] Rule 128 of the PIC Rules.
19.The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
RELEVANT LEGAL AUTHORITY
20.Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
21.The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
22.Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
23.In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
[3] [2021] NSWSC 548, Norrington.
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
24.Brereton J. referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[4] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
[4] [2012] NSWSC 650, Owen.
“busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
25.In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[5] where the Court stated at [64]:
[5] [2016] NSWCA 229, McGiffen.
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
26.Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[6] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[6] [2021] NSWSC 804, Kinchela.
ASSESSMENT UNDER REVIEW
27.The dispute was referred to Medical Assessor Wallace who assessed Ms Zealand and issued a certificate dated 1 November 2022.[7] The injuries referred for assessment were described as follows:
[7] Claimant Bundle AD3 A3 p 10.
· cervical spine ;
· left shoulder, and
· left arm.
28.Assessor Wallace’s diagnosis was that Ms Zealand was injured by the bus accident. He found that as a result of the bus accident Ms Zealand sustained a: Musculoligamentous strain cervical spine and an Impacted fracture proximal humerus left shoulder.[8]
[8] Claimant Bundle AD3 A3 p 14.
29.Medical Assessor Wallace found that in regard to her cervical spinal condition, Ms Zealand has suffered a whole person impairment of 5% corresponding to DRE Cervico-Thoracic Category II, page 104 AMA Guides Edition 4. In regard to the claimant’s left shoulder condition, she has suffered a left upper limb impairment of 15% as a result of loss of range of movement at the joint according to Figures 38, 41 & 44 pages 43-45 AMA Guides Edition 4. At her uninjured right shoulder, the claimant has a loss of range of movement equivalent to 6% right upper limb impairment. Therefore, the difference between the two equals 9% left upper limb impairment which corresponds to a whole person impairment of 5%.
30.According to Medical Assessor Wallace, s 1.51 page 14 of the Motor Accident Permanent Impairment Guidelines, Ms Zealand’s contralateral joint has less than average mobility. Therefore, the impairment value corresponding with the impairment values corresponding to the uninjured joint can serve as a baseline and has been subtracted from the calculated impairment for the injured joint. There is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the injury. Ms Zealand is currently 90 years of age and would most likely suffer from early degenerative osteoarthritis at the bilateral shoulders.
31.Assessor Wallace assessed the claimant with a 10% of permanent impairment caused by the motor accident.
EVIDENCE BEFORE THE REVIEW PANEL
32.The Panel issued two Directions to the parties on 25 January and 23 February 2023 requiring each party to file an indexed, paginated bundle of documents. In response to these Direction the solicitors for the claimant uploaded to the portal an index and a bundle of documents marked AD2 and AD3 paginated from pages 1 to 2829. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD4 paginated from pages 1 to 86.
33.The claimant and insurer have filed with the Commission over 2000 pages of hospital notes, clinical doctors notes, rehabilitation notes and medicolegal reports. The Panel has carefully reviewed and taken these notes and medical records into account but has not attempted to summarise or detail these medical records in these reasons. As many of these records relate to medical conditions that are not relevant to the issues before this Medical Review Panel records have not been summarised in these reasons.
Pre-accident treatment medical evidence
34.The pre-accident medical evidence shows that Ms Zealand reported no previous reported history of injury to her cervical spine or left shoulder or left arm. In June 2020 there was a history of a full thickness tear to the supraspinatus in her right shoulder.
35.The evidence about Ms Zealand’s medical history for other medical conditions includes: long-term deafness, ischaemic heart disease with pacemaker, carcinoma of the colon with hemicolectomy and cataract surgery[9]. She also has medications for blood pressure and hyper cholesterolaemia.
Post-accident treating medical evidence
36.After the bus accident Ms Zealand was taken by ambulance to Royal Prince Alfred Hospital where she remained an inpatient until 17 December 2019. At Royal Prince Alfred Hospital she was diagnosed with a left proximal humeral fracture. She treated with bed rest and analgesic medication. Her left arm was immobilised in a collar and cuff.
37.On 17 December 2019, Ms Zealand was transferred to the Balmain Hospital for rehabilitation. She stayed there as an inpatient until 30 December 2019.
38.On 3 January 2020 Ms Zealand was transferred to the Metropolitan Rehab Hospital where she was an inpatient for 2 months. She was treated with physiotherapy and exercise at that hospital.
39.She was discharged from the Metropolitan Rehab Hospital on 11 February 2020. After her discharge from hospital she continued with the program of physiotherapy until October 2021. Ms Zealand then had a physiotherapist attend her home until April 2022.
40.In June 2020 Ms Zealand had a serious fall at home where she reinjured her shoulder and back.
[9] Claimant Bundle AD3 p 39
Medico-legal evidence
Dr Ian Cameron , consultant physician in rehabilitation medicine
41. Dr Ian Cameron examined Ms Zealand on 22 October 2021 [10]. In his report he noted that the claimant’s cervical spine had a moderately and symmetrically reduced range of motion to 60% of normal. At the left shoulder he found a marked restriction in the range of movement: abduction to 70°, adduction 30°, flexion 80°, extension 10°, external rotation 60°, internal rotation 70°.
[10] Claimant Bundle AD3 A 14 pp 2822 – 2827
42. Dr Cameron found at the right shoulder there was slightly reduced range of movement with abduction and flexion to 160°.
43. Dr Cameron found that using figures 38, 41 and 44 one pages 42 to 44 of AMA 4 Guides this gave a reading of 16% upper extremity impairment which converts to 10% whole person impairment using table 3, page 20 AMA 4 Guides.
44. Dr Cameron noted that there is no deduction in permanent impairment due to the slightly restricted range of movement at the right shoulder because it is not established that the right shoulder joint is normal.
45. Dr Cameron then concluded that the total impairment related to the subject bus accident is 10% WPI.
X-ray, CT Scan and MRI evidence
46. There is an ultrasound report for the right shoulder by Dr S McCormick dated 10 March 2014[11]. That report shows that the claimant suffered a full thickness tear to the supraspinatus tendon in her right shoulder. In detail the report was:
[11] Claimant Bundle AD3 A 15 pp 2828 – 2829
“Biceps Tendon:
There is fluid within the biceps tendon sheath but the tendon is intact.
Subscapularis:
The tendon has a normal appearance.
Supraspinatus:
There is a full thickness tear involving the anterior fibres,
measuring 40mm in diameter with 50mm of retraction.
Infraspinatus:
The tendon is intact.
Subdeltoid / Subacromial bursa:
There is fluid within the subdeltoid bursa, but no bunching or pain
upon abduction. The patient was able to abduct to 90degrees.
Acromioclavicular joint:
There is degenerative change of the AC joint.
Glenohumeral joint:
There is no joint effusion.
CONCLUSION: Full thickness tear involving the anterior fibres of supraspinatus.”
47. There is an x-ray report dated 11 December 2019 [12]. This x-ray examination of the left shoulder shows a fracture at the surgical neck of humerus which is impacted superiorly into the humeral head. There is also a fracture of the greater tubercle through the inferior aspect. No other fractures are identified. The glenohumeral joint appears enlocated on these limited views.
[12] Claimant Bundle AD3 pp 2709 – 2710.
48. There is a CT Examination of the Left Shoulder also dated 11 December 2019[13] which shows a comminuted fracture involving the surgical neck extending up to the greater tuberosity. The humeral shaft is impacted into the head. There is associated anterior and inferior subluxation of the humeral head in relation to the glenoid. No glenoid fracture.
[13] Claimant Bundle AD3 pp 2711 – 2712.
49. There is an x-ray report dated 27 December 2019. This examination of the left shoulder shows a healing fracture of the proximal humerus. The humeral head is located in the glenoid.
SUBMISSIONS
Claimant’s submissions50. The claimant’s solicitors made detailed submissions dated 28 November 2022[14]. They submit that the key difference is in the application of clause 1.51 of the Motor Accident Permanent Impairment Guidelines.
[14] Claimant Bundle AD3 A1 pp 1-6.
51. The claimant’s submissions refer to a medico-legal report from Professor Ian Cameron dated 26 October 2021. The submissions note that Professor Cameron did not provide a permanent impairment rating in respect of the cervical spine, however, Professor Cameron’s assessment of the left shoulder is largely similar to the Medical Assessor Wallace’s reasoning. It equated to 16% upper extremity impairment which according to the Table 3 on page 20 AMA4 converts to 10% whole person impairment.
52. The claimant submits that Medical Assessor Wallace and Professor Cameron found exactly the same impairment in the claimant’s left shoulder. Despite this, Medical Assessor Wallace allocated 5% WPI to the left shoulder instead of 10% and here lies the dispute and basis for the review application.
53. Medical Assessor Wallace with his finding of the right shoulder and determining to use it as a baseline despite the contradicting medical evidence has unequivocally turned the medical assessment procedure into a dispute over an unrelated right shoulder limb and whether or not that right shoulder should be used as a baseline in the assessment. Medical Assessor Wallace elected to use the right shoulder injury as a base line without any foundation of medical evidence, and in those circumstances has vitiated the certificate and erred.
54. The claimant submits that there are two issues with Medical Assessor Wallace’s findings. The first issue first issue is whether there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The second issue is whether the Assessor has explained the rationale for making a finding that the uninjured right shoulder joint has a less than average mobility.
55. The claimant submits that it is not reasonable to take the right shoulder impairment as the baseline figure without any exploration or analysis of the claimant’s medical history.
56. The claimant’s solicitor submits that had Medical Assessor Wallace conducted his duties properly, then he would have discovered that in 2014 the claimant reported to her treating doctor at Doctors on Darling that she suffered a right shoulder injury as a result of a fall which resulted in some reports of restricted range of movement for which she was referred for an ultrasound scan. That scan reported : “Immediate pain, restricted abduction and internal rotation…” Thus Medical Assessor Wallace could not have a reasonable expectation that the left shoulder reflected the right shoulder prior to the accident.
57. The claimant’s solicitor further submits that Medical Assessor Wallace has failed to undertake steps to provide the rationale for his expectations of the contralateral joint and instead engaged in speculative analysis as to the identification of non-accident related reasons for the claimant’s current diagnosis and ongoing impairments. This methodology is strictly forbidden as per the principles enunciated in the authority of NRMA Insurance v Brown [2019] NSWSC 1236.
58. Finally, the claimant’s solicitors submissions conclude that had Medical Assessor Wallace allocated 16% UEI and therefore 10% WPI without erroneously using the right shoulder as a baseline, all then the claimant’s whole person impairment would easily exceed the threshold, as there would have been an assessment of 10% for the left shoulder and 5% for the neck.
Insurer’s submissions
59. The insurer’s solicitor provided submissions dated 19 December 2022.[15]
[15] Insurer Bundle AD4.
60. The insurer submits that the Medical Assessor gave adequate reasons and took into account all the relevant documentation provided, as well as the clinical examination conducted, in reaching the determination.
61. Regarding the suggestion from the claimant that the medical assessor failed to properly apply clause 1.51, the insurer submits that the Assessor has properly complied with the clause as the Assessor stated: “There is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the injury.” The claimant did not suffer any injury to the right shoulder in the MVA. Her claim form contains no reference to a prior right shoulder injury. The Assessor has therefore appropriately used the uninjured joint as a baseline, subtracting the calculated impairment for the injured joint. Again, the insurer submits that the Assessor took into account all the relevant documentation provided, as well as the clinical examination conducted in reaching his determination.
THE MEDICAL EXAMINATION
62. Medical Assessor Kenna attended a home visit at the claimant’s home on 17 March 2023. In attendance to assist with the examination was one of Ms Zealand’s daughters, Elizabeth Zealand. At the date of the examination, Mary Zealand was over 91 years old (born 1932).
63. The background to this visit was an incident that occurred on a bus on 11 December 2019, a period of some three years ago.
64. Ms Zealand is currently 91 years of age and since the accident some three years ago, it is reported that she has been frail, is deaf although gets by with a hearing aid in part, and has recently been diagnosed with dementia.
65. By way of background, she lives alone and has been widowed since 2014. Prior to the accident, she was quite independent, receiving no community support. Noting that she has two daughters who appear to be in regular contact. Associated with her general health, she has also had significant deafness for a prolonged period of time and whilst her general practitioner was previously Dr Jane Novotny (since retired), her general practitioner now is Dr Saw.
66. It is to be noted that she is left-handed.
67. Accompanying the visit and in attendance at the home was Elizabeth Zealand, her daughter, who was of great assistance.
Details of Motor Vehicle Accident: 11 December 2019
68. The incident in question occurred on 11 December 2019 when Ms Zealand was a passenger on a bus. At that point in time, she boarded the bus at Queen Victoria Building in the city. As she was walking down the aisle, the bus driver unexpectedly took off before she was able to sit down and subsequently she lost her balance and fell, falling onto an outstretched arm (left), injuring both neck and left shoulder and arm in the incident.
69. An ambulance attended and the claimant was transported to RPA where x-rays confirmed a fracture of left upper humerus. Ms Zealand remained as an inpatient for one week but wasn’t operated upon and was managed with bed rest and analgesics.
70. At RPA, a diagnosis of a fractured left humerus was made and subsequently she was transferred to Balmain Hospital and then transferred to Metro Rehabilitation Hospital on 3 January 2020 from where she was discharged home on 11 February 2020.
71. The specific injury was a fracture of the surgical neck of humerus (left) as well as a fracture of the greater tubercle.
Documentation leading to assessment
72. She was seen by Professor Ian Cameron in October 2021, some 18 months ago and some 20 months post bus incident. He noted at that point in time he took the details as noted above. That the incident occurred on 11 December 2019 when she was a passenger on a bus, fell to the floor when it unexpectedly took off, injuring her left upper extremity. Ambulance attended, transferred to RPA where a diagnosis of fracture of the left neck of humerus was made. No operative procedure occurred , in part due to age, but also nature of fracture and she was subsequently discharged home on 11 February 2020.
Main Complaints
73. Professor Cameron noted at that point in time that the main complaint was stiffness and pain of the left shoulder. That she couldn’t shower or dress herself adequately or indeed wash her hair. She had trouble with cooking. It was also to be noted, however, she was having assistance in the home funded by the insurer for approximately seven hours per week, as well as further support from her family. Medical Assessor Kenna’s understanding is that she also was receiving assistance via My Aged Care.
74. When Professor Cameron initially assessed the claimant in October 2021, he noted that there was some moderately reduced motion of the cervical spine but this was symmetrically reduced but at the shoulder there was marked restriction in range of movement, with abduction limited to 70°, adduction to 30°, flexion to 80°, extension to 10°, external rotation to 60° and internal rotation to 70°. In contrast to that, the right shoulder had a slightly reduced range of movement with abduction and flexion to 160°.
75. Professor Cameron noted the radiological findings which confirmed an impacted surgical neck of humerus (left) due to the fall on the bus and as noted, after being discharged from RPA some six days later, she was transferred to Balmain Hospital (resides in Birchgrove) where she was managed conservatively, and then a further discharge through to Metro Rehabilitation Hospital showed an admission from 3 January 2020, with a subsequent discharge as noted above.
76. With regards to home treatment, i.e. for her shoulder, she was assessed by Mr Craig, physiotherapist, noting that the home physiotherapy program commenced in March 2020. That multiple sessions were aimed at regaining some range of movement pertaining to the left shoulder and improving muscle strength.
77. Records indicate she had approximately 60 sessions of physio and was discharged from home physio in March 2021.
78. Hence the key points from Professor Cameron’s assessment at that point in time was that there was a clear motor vehicle accident related injury (fractured neck of left humerus, impacted). This resulted in significant reduction in range of movement of the left shoulder with residual substantial range of movement reduction post rehabilitation, noting she didn’t undergo any surgery but did require a significant degree of increased assistance at home where she lived alone but had previously been independent. It is to be noted that Ms Zealand’s dominant arm was the left arm.
79. It was Professor Cameron’s considered view that the claimant had an assessable permanent impairment with regards to the left shoulder. The cervical spine wasn’t mentioned but he considered that no deduction for permanent impairment due to the slightly restricted range of movement of the right shoulder but it hadn’t been established it was a normal joint (key point). Nevertheless, his total whole person impairment was 16% upper extremity impairment, which converted to 10% whole person impairment.
Further Assessment
80. Ms Zealand was then seen by Medical Assessor Wallace in November 2022. He noted the previous findings from Professor Cameron. His assessment occurred in November 2022, a period of some 12 months later. Hence, it was possible that there may have been some further improvement. He once again confirmed the diagnosis of fracture left humerus (impacted surgical neck) and the history he took was largely similar.
81. At the time of his examination, her main complaints were intermittent aching pain in the cervical spine, lower cervical region, with some radiation to the left scapula and also involving left shoulder symptoms. She had a complaint of pain on movement of the left shoulder with accompanying weakness but he commented that he noted no stiffness of her cervical spine. He noted for the cervical spine there was no neurological deficit but that she had asymmetric range of movement restriction, although no muscle spasm present.
82. His upper extremity assessment noted reduced range of movement pertaining to the right shoulder (uninjured in the fall) but noted pertaining to the left shoulder that she presented with flexion 100°, extension of 20°, adduction 0°, abduction 100°, internal rotation 60° and external rotation 20°. At the time of that assessment, she had ceased all physiotherapy.
83. The x-ray findings were noted which confirmed the fracture of the surgical neck of humerus which is impacted superiorly into the humeral head (11 December 2019 plain film).
84. On 27 December 2019, some two weeks later, further x-rays reconfirmed the findings showing a healing fracture of the proximal humerus, with the humeral head located in the glenoid.
85. It was Medical Assessor Wallace’s considered view that she had suffered injuries to the cervical spine and a fracture of the left proximal humerus as a result of the accident on 11 December 2019. That the injuries incurred were soft tissue injury to the cervical spine and impacted fracture of the proximal humerus of the left shoulder.
86. That being the case, Medical Assessor Wallace considered the following injuries were caused by the accident; cervical spine and left shoulder and left arm.
87. That the condition had stabilised.
88. He considered she had 5% impairment pertaining to the cervical spine due to asymmetric movement.
89. In regard to the left shoulder, Medical Assessor Wallace found a 15% upper extremity impairment as a result of reduced range. Medical Assessor Wallace noted there was abnormal movement pertaining to the uninjured right shoulder and therefore she had a loss of range of movement equivalent to 6% in the right upper extremity deducting 15 minus 6 equals 9% left upper extremity impairment, which corresponded in his assessment to whole person assessment of 5%. Noting contralateral joint had less than average mobility. He used therefore the right shoulder as a baseline for the calculated impairment of the injured joint but failed to take into account a past history of trauma to the right shoulder in 2014 (which the daughter remembered) following which x-rays confirmed a rotator cuff tear.
90. Medical Assessor Wallace also recorded the claimant notes no previous history of injury or episodes of pain at her left shoulder prior to the index injury and that being the case, considered the cervical spine was 5%, left shoulder was 5% for the reasons as stated above. Ms Zealand did not complain of any symptomatic conditions or previous injury of her cervical spine and left upper limb prior to the index injury.
Review panel
91. The claimant sought a review of the assessment of Medical Assessor Wallace on the basis that the impairment was incorrect and disputed the findings that the impairment was not greater than 10%. It was noted that there was a similarity in findings between Professor Cameron and Medical Assessor Wallace.
92. Key points of dispute were with regards to right shoulder, it was disputed as to whether it could be a reasonable expectation that the contralateral uninjured joint, in this case the right shoulder, exhibited a less than average mobility which is an objective test. Similarly pertaining to the right shoulder, the contralateral uninjured joint had a less than average mobility and in contrast to that, Professor Cameron did not include a deduction for the right shoulder on the basis that it had not been established that this was a normal joint. Although therefore they came to a similar level of 10%, this was due to 5% inclusion for the cervical spine by Dr Wallace, where in actual fact Professor Cameron didn’t include this in the overall level of impairment.
Key points to note
93. When Medical Assessor Kenna assessed the claimant, several factors became apparent. Firstly, she had had a previous injury to the right shoulder in 2014. Although no history could really be obtained from the claimant, her daughter provided some useful knowledge in that although she was aware of an incident that had occurred several years earlier with regards to the right shoulder, and x-rays had been taken by the treating GP, Dr J Novotny, her daughter wasn’t particularly aware that there had been any real impact with regard to range of movement, although that was clearly just observational.
94. Nevertheless, the history obtained is as follows pertaining to x-ray and ultrasound of the right shoulder. Clinical history was one of possible rotator cuff tear and date of ultrasound was 26 February 2014.
95. Ultrasound report: biceps tendon, there was fluid within the biceps tendon sheath but the tendon is intact. Subscapularis tendons in normal appearance.
96. Supraspinatus has a full-thickness tear involving anterior fibres measure 40mm in diameter with 50mm of retraction.
97. Infraspinatus tendons intact.
98. Subdeltoid/ subacromial bursa. There was fluid within the subdeltoid bursa and no bunching or pain upon abduction. The patient was able to abduct to 90°.
99. Acromioclavicular joint: degenerative changes at joint. Glenohumeral joint no joint effusion.
100. Conclusion: Full-thickness tear involving the anterior fibres at supraspinatus.
101. Elizabeth Zealand can remember that there was an incident with her mother’s right shoulder which required an x-ray. Elizabeth Zealand does not know whether there was any substantial, if any, reduction in range of movement. She can’t recall any discussion pertaining to a developing stiff shoulder at the time.
Further development:-further injury to left shoulder post accident
102. Subsequent to the motor vehicle accident on 11 December 2019, Mary Zealand has also sustained a further injury to the left shoulder (the injured joint in question) as a result of a fall at home whilst I believe doing some exercise on the arm.
103. It is important to note that no direct history could be taken from the claimant, as she was essentially incoherent, but the fall was recorded by Professor Cameron (page 1 of his report) noting in June 2020, Ms Zealand fell at home while exercising and lay on the floor for a long period. She was admitted again to Royal Prince Alfred Hospital and was markedly unwell. It is therefore conjectural whether in actual fact she had a further injury to the left shoulder, although there was a further incident post-accident and it would be difficult to imagine a fall at home without a possible further injury as noted.
104. Nevertheless, whether any injury to the left shoulder occurred in the fall, it is conjectural and whether there has been any further reduction in movement of the left shoulder as a result of such is also conjectural.
105. Hence, the key point as noted by the President’s Delegate, was whether the left shoulder condition would have similar findings to the right shoulder prior to the accident. It would appear that the claimant would have had better movement of the left shoulder than the right shoulder prior to the accident, in view of the fact that she had no prior history of left shoulder injury.
106. Nevertheless, there is a clearly defined injury to the right shoulder with associated pathology but following the June 2020 incident, there was some degree of aggravation of the left shoulder.
Clinical Examination
107. With the assistance of the claimant’s daughter Elizabeth Zealand, Medical Assessor Kenna examined firstly the cervical spine (all examinations were performed sitting down at the low kitchen table).
108. Medical Assessor Kenna describe the claimant as being of stoic presentation so typical of a pre-war life. Ms Zealand was now frail and would have weighed no more than 45kg and was small in stature.
CERVICAL SPINE
109. No muscle guarding over the left apophyseal pillar or indeed right. A co-operative patient and no complaint of pain.
MOVEMENTS RANGE EXHIBITED Flexion 40% restriction Extension 40% restriction Rotation to the right 40% restriction Rotation to the left 40% restriction Lateral bending to the right 40% restriction Lateral bending to the left 40% restriction NEUROLOGICAL TESTS:
REFLEXES:
REFLEX LEFT RIGHT TRICEPS JERK Normal Normal BICEPS JERK Normal Normal BRACHIORADIALIS Normal Normal SENSATION: No obvious alteration in normal sensation.
MUSCLE WASTING
110. No muscle wasting
LEFT (cm) RIGHT (cm) UPPER ARM 23 23 FOREARM 20 20 MUSCLE POWER
LEVEL MOTOR POWER LEFT RIGHT C4 5/5 NORMAL NORMAL C5 5/5 NORMAL NORMAL C6 5/5 NORMAL NORMAL C7 5/5 NORMAL NORMAL C8 5/5 NORMAL NORMAL T1 5/5 NORMAL NORMAL 5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistanceDURAL TENSION TESTS:
TEST RIGHT LEFT PASSIVE NECK FLEXION Normal Normal BRACHIAL PLEXUS STRETCH Normal Normal UPPER EXTREMITIES
Right Shoulder
Measurement Reference
(4th ed.)Normal Upper Extremity Impairment Flexion 140° Figure 38 (43) 180° 0 Extension 30° Figure 38 (43) 50° 0 Adduction 30° Figure 41 (44) 50° 0 Abduction 150° Figure 41 (44) 180° 0 Internal Rotation 60° Figure 44 (45) 90° 0 External Rotation 60° Figure 44 (45) 90° 0 Total 0
Goniometer measured
111. Movement didn’t show any indication of frozen shoulder or loss of scapulothoracic rhythm. There was normal scapulothoracic rhythm but just end range restriction, with no complaint of pain or symptoms, which Medical Assessor Kenna considered most likely is substantially age related (although impossible to prove that there isn’t a small contributory element from the fall some 7-8 years ago).
Left Shoulder
Measurement Reference
(4th ed.)Normal Upper Extremity Impairment Flexion 90° Figure 38 (43) 180° 6 Extension 30° Figure 38 (43) 50° 1 Adduction 10° Figure 41 (44) 50° 1 Abduction 80° Figure 41 (44) 180° 5 Internal Rotation 80° Figure 44 (45) 90° 0 External Rotation 40° Figure 44 (45) 90° 1 Total 14 Goniometer measured
112. Normal range of movement pertaining to the left elbow, hand and wrist.
113. 14% UEI x 0.6 = 8.4 rounded to 8% UEI.
114. Pertaining to the left shoulder, here there was clear evidence of a frozen type shoulder with fairly rigid abduction to 80° and flexion of 90°, clearly reflective of the fractured neck of humerus. As such, other movements were also accordingly decreased but not as substantially as flexion and abduction.
115. Noted that she ceased all physiotherapy treatment.
116. Interestingly, no muscle wasting of the left upper limb in comparison to the right (she is left arm dominant), indicating she is still using the left arm to some extent.
Discussion
117. Ms Zealand’s condition has now stabilised, as the bus accident occurred on 11 December 2019, a period now of some 3½ years ago. She has reached maximum medical improvement and there are no active plans for any further management. Indeed, the aim is to do the minimum and treat conservatively.
118. This has been a successful approach.
119. She has been able to remain at home, probably only as a result of very extensive home care and associated resources from the family.
120. Medical Assessor Kenna considers that as the claimant sustained in view of the injury to the left shoulder, there would have been initially involvement of the cervical spine per se, i.e. involving the left upper quadrant functional mobility. Medical Assessor Kenna accepts therefore with regard to the cervical spine, that there is symptomatology and in part causation. There is uniform restricted range of movement, no muscle guarding and therefore whole person impairment is DRE Category I = 0% whole person impairment.
121. In relation to the left shoulder, there is clearly decreased range of movement but it is difficult to know whether that is purely a combination of the fall and fracture, combined with possibly a fall on the left shoulder whilst doing exercises as well as age related stiffness pre-accident. If we attribute that as part of the impairment, that is, it only occurred as a result of initial injury, then the shoulder movements can be treated as one impairment, which is equivalent to 14% upper extremity impairment = 8.4 rounded to 8% whole person impairment.
122. In this particular case, Medical Assessor Kenna hasn’t used the right shoulder as a baseline. Firstly, Dr Wallace considered the right shoulder was uninjured but has made a deduction of 6% due to potentially age relationship. Either way, he has treated it therefore as a normal joint, whereas as it is clearly evident it is not a normal joint and there is associated radiological investigations to confirm such and support such contention.
123. It would therefore appear that a deduction can’t be made for the right shoulder, as it wasn’t an uninjured joint previously and its range of movement may not be reflective of just age-related restriction. In that respect, Professor Cameron I believe has been correct in noting that the right shoulder can’t be used as a baseline.
WHOLE PERSON IMPAIRMENT
Permanent Impairment Table
Body Part or System
AMA Guides/ The Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1
Cervical Spine
DRE Ich3,pgs102-107,AMA4
Tables 7 & 8
The GuidelinesYes
0
0
0
2
Left shoulder
ch3, 3.1, pgs15-74
T 1-32
The GuidelinesYes
8
0
8
* 8%WPI = percentage whole person impairment
124. The degree of permanent impairment caused by the motor vehicle accident is 8% which is not greater than 10%.
Cervical spine:
Stable: yes
Reference: AMA Guide 4th edition
Relevant chapters and Table: ch 3, pge 103, Section 3.3h, Table 70, pge 108, Table 73, pge 110
Assessment : DRE Category 1
Whole Person Impairment: 0%
Reason for assessment: A 0% WPI has been assigned as there is no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury
Left shoulder:
Stable: Yes
Reference: AMA 4TH EDITION
Relevant chapters and Table: ch3, pge 41, Section3.1j, figures 38,41,44, pgs 43-45 and Table 3-20
Whole Person Impairment: 8%WPI
Reason for assessment: A left upper limb impairment of 14%, converting via Table 3 to 8%WPI
SUMMARY OF PANELS OPINION AND CONCLUSIONS
125. The Panel’s opinion is that the accident in the bus on 11 December 2019 caused a soft tissue injury to the cervical spine and a fracture to the left proximal humerus in the left arm.
126. The Panel accepted that Ms Zealand had sustained soft tissue injury to her cervical spine as a result of the accident. At the re-examination and medical assessment the Panel found no asymmetry, dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for her cervical spine was DRE Cervicothoracic Category I, resulting in 0% WPI.
127. The Panel accepted that Ms Zealand sustained a fracture in her left arm as a result of the accident. The Panel noted the history of a series of injuries to both the left and right shoulders both before and after the accident on 11 December 2019. The Panel also notes the claimant’s consistent presentation at the re-examination . Therefore, any shoulder restriction in the Panel’s opinion could relate to the accident and therefore there was a subject accident related impairment of the left shoulder.
128. In reaching its conclusions about the causation of the claimant’s left arm and shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is satisfied that the subject motor vehicle accident materially contributed to the claimant’s left shoulder injury or exacerbated any such injury.
129. In conclusion the Panel found that there was 8% WPI of the left shoulder and 0% WPI for the cervical spine due to the bus accident.
130. As a result of these findings the Panel revokes the certificate of Medical Assessor Wallace dated 1 November 2022 and issues a replacement certificate in accordance with these reasons.
0
6
0