AAI Limited t/as AAMI v Haramis (No 1 and No 2)

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Haramis (No 1 and No 2) [2023] NSWPICMP 234
CLAIMANT:	Anthoula Haramis
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Clive Kenna
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	2 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; these were disputes about medical expenses and whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 19 October 2019; insurer applied for review of Medical Assessor (MA) Home’s certificate dated 18 September 2022 finding the claimant suffered a non-threshold injury and that a claim for reimbursement of pain reduction medication expenses was aiding the claimant’s recovery; the claimant complained that accident caused right and left shoulder, hips and spinal injuries; complained about left shoulder pain soon after the motor accident and submitted that she sustained a left shoulder tear in the motor accident which meant the injury was classified as non-threshold injuries; scan evidence showed changes that appeared to be acute; Panel re-examined claimant; Held – the Panel was satisfied that the claimant sustained a left shoulder, full thickness tear in the motor accident; the accident did not cause the right shoulder condition; the Panel was satisfied that the claimant’s medication was aiding recovery; other injuries were soft tissue injuries so were threshold injuries as defined by  section 1.6; Medical Assessment Certificates confirmed.
DETERMINATIONS MADE:	Treatment and Care – Reasonable and Necessary – Improve Recovery of the injured Person & Threshold injury – Physical Review Panel Assessment of Treatment and Care – Reasonable and Necessary Certificate *issued under s 7.23(1) of the Motor Accident Injuries Act 2017* (the MAI Act) The Review Panel confirms Medical Assessor Home’s certificate dated 18 September 2022 Review Panel Assessment of Treatment and Care – Improving Recovery Certificate issued under s 7.23(1) of the MAI Act The Review Panel confirms Medical Assessor Home’s certificate dated 18 September 2022. Review Panel Assessments of Threshold Injury[1] Certificates** issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms Medical Assessor Home’s certificates dated 18 September 2022.

[1] Formerly known as minor injury before 1 April 2023 see Motor Accident Injuries Amendment Bill 2022 .

REASONS

Background

Anthoula Haramis (the claimant) was injured in a motor accident on 19 October 2019.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant disputed the insurer’s decision that the claimant’s:
(a)    cervical spine (neck injury);
(b)    left and right hip injury;
(c)    left and right shoulder injury, and
(d)    lumbar spine (lower back pain).
were minor injuries, as they were then called, for the purpose of the MAI Act.
The following treatment and/or care disputes also arose:
(a) whether the request for reimbursement of pharmaceutical medication listed in the tax invoice dated 27 May 2022 will improve recovery, and
(b) whether the request for reimbursement of pharmaceutical medication is reasonable and necessary.
These disputes were referred to the Personal Injury Commission (the Commission) to resolve. The disputes were referred to Medical Assessor Alan Home, who issued a certificate on 18 September 2022.
Medical Assessor Alan Home decided that the injury he described as a partial thickness tear to the claimant’s left shoulder is not a minor injury, within the meaning of the MAI Act as it then was.
The Medical Assessor also found that the request for reimbursement for pharmaceutical medication (Otsemol, Burprenorphine patch and Pregabalin) was causally related to the accident, was reasonable and necessary and would aid recovery.
The insurer lodged an application for referral of a medical assessment to a Review Panel within 28 days after the Commission issued the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
The applications have produced two separate disputes in the Portal.
On 25 November 2022 the President’s delegate referred the medical assessment to a Review Panel as the delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]

REVIEW

[3] Section 7.26(5) of the MAI Act.

Legislative framework

Part 5 of the Personal Injury Commission Act 2020 (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 Merit Reviewer or a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
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.[5]
[5] Rule 128 of the PIC Rules.
The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act so that from
1 April 2023 the term “threshold” is substituted for “minor”. The terms are interchangeable. This decision will retain the former term, except where the certificate is issued.
At the time this dispute became apparent s 1.6 of the MAI Act defined a minor injury to include a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury is to be assessed as a minor injury. They are now described as a threshold injury.
Clause 5.16 of the Guidelines provides for the assessment of treatment disputes after more than 26 weeks after the motor accident for a person whose only injuries are minor injuries.[6]
[6] This clause is deleted in the Guidelines issued after 31 March 2023 for injuries after 1 April 2023, but will continue to operate for injuries before that date.
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 Merit Reviewer or a Medical Assessor.[7]
[7] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were minor or non-minor as defined under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[9] and Insurance Australia Ltd v Marsh.[10]
[9] [2021] NSWCA 287 at [40], [41] and [45].
[10] [2022] NSWCA 31 at [11], [21] and [64].
The Review Panel adopts the reasoning in David v Allianz Australia Ltd[11] that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
[11] [2021] NSWPICMP 227 at [84]-[104].
We also adopt the reasoning in Lynch v AAI Ltd[12] that the claimant bears the onus of proof in establishing any injury is not a minor ie threshold injury for the purposes of the MAI Act.
[12] [2022] NSWPICMP 6 at [44]-[62].

Assessment under review

Medical Assessor Home issued certificates dated 18 September 2022 on these disputes.

Treatment and care

The treatment and care disputes were about reimbursement of pharmaceutical medication expenses listed in a tax invoice dated 27 May 2022 for:
·        Ostemol, 665 mr – TAB;
·        Burprenorphine (Norspan) patch, 5 micrograms per hour, and
·        Pregabalin, 35 milligrams.
The Medical Assessor found these items were reasonable and necessary to treat
Mrs Haramis’s condition and would aid her recovery in accordance with the meaning of those terms under the MAI Act and the Guidelines.

Minor injury

The left shoulder suffered a partial thickness tear that was not a minor injury.
The cervical and lumbar spine conditions were considered temporary aggravation of degenerative change and were certified minor injuries.

Disputes and issues identified by the parties

INSURER’S SUBMISSIONS

The insurer submits that Medical Assessor Home’s certificate dated 18 September 2022 was incorrect in a material respect on the grounds that the Medical Assessor:
(a) erred in finding that the subject accident caused the left shoulder partial thickness tear, and
(b) erred in finding that the request of pharmaceutical medication (Ostemol, 665 mr –TAB; Burprenorphine (Norspan) patch, 5 micrograms per hour; and Pregabalin, 35 milligrams) listed in tax invoice dated 27 May 2022 would improve the recovery of the injured person.

Causation

The Medical Assessor was required to determine whether the motor accident caused the alleged injury to the claimant’s left shoulder.
Under ‘Diagnosis and Causation’ on page 14, Medical Assessor Home found in respect the left shoulder:
“However, the extent that the claimant suffered immediate onset of left shoulder pain, I am satisfied that the claimant did suffer an aggravation of any pre-existing degenerative tear in the left shoulder.
On balance, the left shoulder tear was likely to have been present prior to the accident, but aggravated by the subject accident, rendering it symptomatic.
Therefore, I find that the left shoulder injury being a partial tear in the rotator cuff is a traumatic injury to which the motor vehicle accident is more than a negligible cause, therefore satisfying the criteria for causation.
I am satisfied that the left shoulder injury is a non-minor Injury representing a tear in the left rotator cuff.”
He found the shoulder injury was non-minor on the basis that it met the definition of a partial rupture of a tendon.
The insurer highlights that the ultrasound of the left shoulder dated 31 October 2019 revealed an intrasubstance articular surface tear of the mid-supraspinatus. There is no suggestion that there was a ‘partial’ tear.
In any event, the Medical Assessor found that:
“a. The left shoulder tear was likely to have been present prior to the accident.
b. The accident caused a left shoulder injury which is a non-minor injury on the basis it is a partial rupture of a tendon.”
Such findings are incongruent with each other, and with the Medical Assessor’s ultimate conclusion that the accident caused the partial tear of the left shoulder.
The Medical Assessor’s finding that the motor accident caused the tear is also inconsistent with Medical Assessor Home’s earlier certificate dated 25 February 2022 (R51) in which he stated:
“It is noted the claimant is 73 years of age and degenerative tearing in the rotator cuff is a common ultrasound finding. Similarly findings of bursal thickening is a common ultrasound finding in this age group…. … it is probable on the balance of probabilities that the onset of left shoulder pain reported by Dr Kosta in November 2019, some one month post-accident would represent an aggravation of the underlying degenerative rotator cuff pathology due to seatbelt trauma.”
The insurer also submits that the Medical Assessor’s conclusion that the accident caused the partial tear of the left shoulder is inconsistent with his findings in relation to the right shoulder, because:
“… I do not find that the forces involved in the motor vehicle accident involving a rear-end collision would cause a full thickness tear of the right shoulder as described, even if the claimant had reached forward with her hands as she states today.”
The insurer says that Medical Assessor Home has not set out his path of reason to reach that conclusion, while holding the accident caused the left shoulder injury.
The Medical Assessor failed to address and/or provide sufficient reasons as to why he was satisfied the accident caused the ‘partial’ tear in circumstances where he accepted that the tear was likely to have been present prior to the accident.
The Medical Assessor failed to address and/or provide sufficient reasons as to why he was satisfied the forces involved in the accident would cause a tear to the left shoulder, but not the right shoulder.

Treatment

On page 18 of his certificate, Medical Assessor Home stated that the medications:
“…are analgesic medications used to manage the pain arising from the subject accident. It is not apparent that the claimant has recovered from her injuries at the time that the medication was prescribed.
I find that the request for reimbursement of pharmaceutical medication is reasonable and necessary as it is accepted medical treatment that is required to improve her symptoms to facilitate additional treatment including home exercise…
Whilst the analgesic medication would not directly assist with the recovery of the injured person and would improve the claimant’s capacity to return to work, it does enhance the opportunity for other treatment to do so.”
The Medical Assessor did not record whether the claimant was undertaking home exercise, nor did he take a history of the claimant undergoing ‘additional treatment’. Rather, Medical Assessor Home took a history that the claimant did not receive any durable benefit from physiotherapy, hydrotherapy or injections.
The Medical Assessor failed to address and/or provide sufficient reasons as to why he was satisfied the medications would ‘facilitate additional treatment’ or enhance the opportunity for other treatment to improve the claimant’s recovery in circumstances where he did not take a history of the claimant undertaking any additional treatment.

Claimant’s submissions

The claimant opposed the insurer’s application for the review.
Mrs Haramis underwent a left shoulder MRI on 31 December 2019 demonstrating an intrasubstance supraspinatus tear with limitation of abduction and pain at 45°.
Mrs Haramis’ general practitioner (GP) since 2002 Dr Alan Leung reported on
3 April 2021 “this is to certify that Anthoula Haramis does not have any complaints of her neck/shoulder and hips during the past 10 years [sic]”.
Dr Leung’s reports of 19 June 2020 and 30 April 2021 support the lack of shoulder complaints after 2011.
Dr Korber’s report of 7 April 2020 noted the left shoulder injury and stated that whether the patient had aggravated a pre-existing condition is a matter of clinical determination.
Medical Assessor Home undertook a clinical determination, and he established the accident aggravated a pre-existing tear.
Medical Assessor Home’s certificate dated 25 February 2022 noted the following:
“She had a seat belt over her left shoulder and therefore it is probable on the balance of probabilities that the onset of left shoulder pain reported by Dr Costa in November 2019, some one month post incident would represent an aggravation of the underlying degenerative rotator cuff pathology due to seatbelt trauma.”
This is not inconsistent with his finding in the certificate dated 18 September 2022.

Treatment

Part 5 of the Motor Accident Guidelines, specifically, 5.16 states that:
“The payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is:
(a) Medical treatment, including pharmaceuticals; and
…
(h) The treatment and care will improve the recovery of the injured person; or
(j) The treatment and care will improve the injured person’s capacity to return to work and/or usual activities” (claimant’s emphasis).
The insurer’s submissions states that Medical Assessor Home did not take a history of the claimant undertaking home exercise, nor did he take a history of the claimant undergoing additional treatment.

The Motor Accident Guidelines state that the payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is treatment and care that will improve the person's capacity to return to work and/or usual activities.
It is therefore not a requirement that the claimant undergo further additional treatment including home exercises in order to satisfy the test that the treatment provided will improve the injured persons capacity to return to usual activities.
Medical Assessor Home addresses the issue of whether the treatment is considered reasonable and necessary by stating that at the time of the claimant’s clinical examination her injuries had not resolved and the treatment provided would improve the claimant’s capacity to return to usual activities.

Review

The Panel met on 16 March 2023 via Teams.
The claimant’s solicitor did not comply with the earlier direction to comply with PIC Procedural Direction 7, cls 38 to 41. The Panel did not have all the claimant’s material that Medical Assessor Home had before him when he produced his certificate, including reports from Dr Damodaran.
That direction was pressed and the claimant produced those items.
Being mindful of the Court of Appeal’s authority in Sydney Trains v Batshon [41],[13] the Panel required a re-examination of the claimant because the history needed to be expanded.
[13] Sydney Trains v Batshon [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Medical Assessor Gorman conducted this examination on behalf of the Panel on
19 April 2023 at 11am with a Greek interpreter
The Review Panel met again on 4 May 2023 to discuss Medical Assessor Gorman’s findings and the notes produced.

Documentation

The Review Panel considered the following documentation:
·        Medical Assessor Home’s certificate dated 18 September 2022;
·        Application for review and attached documents;
·     Reply and attached documents;
·     the Proper Officer’s Reasons issued 31 March 2022 referring this matter to a Review Panel, and
·     all the documents which were provided to Medical Assessor Home before the assessment under review.

REVIEW PANEL FINDINGS

Clinical re-examination

Who attended the assessment

Mrs Haramis was accompanied to the assessment by a Greek language interpreter,
Mr Michael Kazonis No: CPNZNW67E. Her husband was also present.

History

Past Medical and social history

Mrs Haramis is a 74-year-old women born in Greece who came to Australia in 1970.
Mrs Haramis is married with two non-dependent children aged 47 and 52 years. She is a non-smoker.
Her husband is her carer and has been so for many years because of her psychiatric condition.
She had stopped work in 1975 – she was a cleaner but stopped with the development of depression after the loss of a child.
She reported to Medical Assessor Gorman that she was diagnosed with schizophrenia at this time. She was treated with Stelazine and was stable for many years. More recently she has been on another anti-psychotic, Olanzepine.
After the car accident she was treated with Zoloft, an anti-depressant. She last saw a psychiatrist in 2018 (Dr Lupa) and at that stage was well – she commented that her psychiatrist was then impressed that she was “laughing”.
She slipped at home and injured her back 10 years ago. This resolved with chiropractic treatment.

History of the motor accident

Mrs Haramis states that on 19 October 2019, she sustained injuries to the cervical spine in the subject accident as the seat-belted front seat passenger in a Holden Barina sedan which was driven by her daughter. They were stationary at a pedestrian crossing on Fore Street, in Canterbury, New South Wales, when the insured vehicle collided with the rear of their vehicle and pushed it forward. There was no secondary forward collision. The rear of her vehicle was damaged.
She recalls that the property damage insurer wrote her car off at a value of $5,130. She recalls that she felt “a big bang” at the time of the accident. She later told me that she believed that her seat belt was loose and that she had moved forward with both hands hitting the dashboard.
She recalls that the police nor ambulance did not attend the scene of the crash. Her daughter drove her home.
She states she experienced immediate onset of neck pain and pain in her lower back. There was pain across both shoulders as she put her arms forward to the dashboard. The pain was worse on the left shoulder. She said that the right shoulder pain became gradually worse somewhat later.
She attended Dr Leung, her usual general practitioner, in Marrickville. He referred her for X-rays of the lumbar spine performed 24 October 2019. At the advice from a friend, she attended Dr Costa on 29 October 2019 and that doctor referred her for X-rays of the cervical spine and later for CT scans of the cervical spine and lumbar spine, performed in January 2020.
She had physical therapy. She received treatment with analgesia including Osteomol and a low dose of Lyrica.
Dr Simon McKechnie (neurosurgeon) saw her in February 2020. Hearranged MRI scans of the cervical and lumbar spine. He did not institute any treatment. Her GP
Dr Costa referred her for further imaging.
She underwent a Bone Scan in February 2020. Dr Kuo, shoulder surgeon saw her with regard to increasing pain in both shoulders, worse on the left side. She recalls that
Dr Kuo arranged aninjection to the left shoulder. She found it was little help. She received treatment with medication.
She deteriorated psychiatrically after the accident – she was suicidal for a period but did not want to go to hospital. She said, “my life changed so much”.
There was further periodic physical therapy – she recalls having 28 sessions of physiotherapy. She recalls a period of supervised hydrotherapy-based exercises. Neither the physiotherapy nor hydrotherapy provided durable benefit.
She has since worn a collar 2-3 hours per day to provide warmth to her neck and to limit her movement. She finds that sudden movement causes sharp neck pain.
Dr Damodaran, neurosurgeon saw her, and he arranged two injections into her neck (transforaminal in the left C6 and C7 nerve roots). They did not provide any benefit beyond 1-2 days.
Dr Trudy Richmond, a pain specialist also saw her. That doctor arranged two further injections into her neck – these were left sided facet joint injections. Again, these did not provide any durable benefit. Dr Richmond adjusted her medication and commenced Norspan.

Medications

She applies a heat cream and now takes Panadol Osteo (four tablets daily), Lyrica, 75 mg twice daily, Zoloft 200 mg daily, Olanzepine 5mg daily and she applies a buprenorphine patch (Norspan) replaced weekly (5 milligrams patch). She takes Endone occasionally.
She gets constipation and needs Movicol for this.
She reports that the medication helps. She said that she “can’t live without medication”.
She reported that she is on Lyrica for “nerve pain”.
She report she only started the Lyrica, Osteomol, Zoloft and Norspan patch after the accident.

Current symptoms

Mrs Haramis reports current symptoms of neck pain that is present constantly in the midline. Neck motion is limited in both directions, (left and right). There is pain at the top of the left shoulder which is constant and increases at night and in cold weather. There is difficulty with overhead reaching due to restricted motion. She describes similar pain at the right shoulder, the left shoulder is a little worse than the right.
She describes intermittent numbness in all of the digits of both hands, most severe in the radial three digits of both hands. This does not seem to be associated with activity. Symptoms of paraesthesia are worse at night. In the lower back, she describes constant pain of moderate severity.
Pain radiates into the buttocks on both sides. Sometimes the pain radiates all the way down the left leg. Sometimes there is numbness in the left foot. There are no symptoms in the right leg. There is intermittent numbness in the toes of the left foot. There is sometimes exacerbation of neck and back pain with coughing and sneezing.
She reports that she has lost 40kg since the accident.

Activities of daily living

Ms Haramis is right-hand dominant. She can only stand for 5 minutes. She describes a sitting tolerance of 30 minutes, a walking tolerance of 30 minutes but walks with a walking stick to prevent falls as she finds her left leg gives way. Her husband helps her with dressing and care. She describes marked sleep disruption. She is able to lift no more than 1kg with either hand. At her home, she undertakes a share of very light domestic chores but her husband performs most of the cleaning. Since the accident she does much less cleaning.
She needs help showering – she uses a shower chair. She has seen the Aged Care team and is classified as needing Level 3 assistance.

Clinical examination

General presentation

Ms Haramis presented as a 73-year-old woman standing 155cm and weighing 57.6 kg.
She had a soft neck collar in place. She said that she only wore this when she went out.

Cervical spine (cervicothoracic)

Examination reveals normal spinal curvature without muscle spasm. There is a reduced range of active motion in all planes. Flexion and extension are performed to one quarter normal range. Lateral flexion is performed to one quarter normal range to both sides. Rotation to the right was to one half normal – it was worse to the left at one quarter normal.
Neurological examination of the upper extremities revealed normal upper limb power in all muscle groups with reinforcement. She reported a non-dermatomal reduction in sensation in the whole of the left arm. The deep tendon reflexes were symmetrically preserved.

Left and right shoulder

There is limited active elevation at either shoulder.
She could only just reach the occiput on each side. On the left she could reach the left buttock and on the right just reach the lumbar spine.
The reproducible maximal range of motion in each shoulder is outlined below measured with a goniometer.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110°	90°
Extension	30°	20°
Adduction	100°	90°
Abduction	30°	20°
Internal Rotation	50°	30°
External Rotation	80°	80°

Thoracolumbar spine

Examination revealed normal spinal curvature. There is no muscle spasm. Flexion was performed to no more than one fifth normal range. Extension was nil. Right and left rotation one quarter normal range. Right and left lateral flexion one fifth to the right and nil to the left.
There is restricted straight leg raise in a seated position to 70 degrees on each side.
Neurological examination of the lower extremities demonstrated normal lower limb power in all muscle groups. There is normal sensation. The deep tendon reflexes are symmetrically preserved.

Right and left hip

There is a reasonable range of hip internal and external rotation. There is normal range of hip flexion demonstrated bilaterally in a seated position. Hip extension is normal in a standing position.

Comments on consistency

Mrs Haramis was cooperative and consistent in her examination.

Assessment

Mrs Haramis has ongoing symptoms following the motor vehicle accident. Her pain in the neck, back and shoulders arose immediately after the accident. The analgesic medications are for the effects of the accident – she was not on these prior to the accident. She reports that they continue to be needed.
Medical Assessor Home suggests that “while the analgesic medication would not directly assist with the recovery of the injured person and would not improve the claimants capacity to return to work, it does enhance the opportunity for other treatments to do so”. While Mrs Haramis is not having any other treatments at present, there is little doubt that if the medications were ceased, she would deteriorate. She did improve to some extent as the analgesic medications were added.
The pain has always been more severe in the left shoulder and the ultrasound on
30 January 2020 showed an intrasubstance tear of the supraspinatus. She did not have previous shoulder pain. She gave a history of her hands reaching the dashboard at the time of the accident, which was capable of causing the left shoulder injury. It is probable that the left shoulder rotator cuff tear occurred at the time of the accident.
Further, Medical Assessor Gorman’s view of the left shoulder ultrasound report was that while appearance were consistent with degeneration, the history was of immediately worsening pain suggesting the while there may have been pre-existing pathology, there was a further tear at the time of the accident.

Panel deliberations

The Panel met on 4 May 2023 and decided to adopt Medical Assessor Gorman’s examination report as evidence in this Review.

Panel decision

Treatment and Care - reasonable and necessary

The Review Panel’s findings in relation to whether the treatment provided, or to be provided is reasonable and necessary in the circumstances confirm the findings as stated in Medical Assessor Home’s reasonable and necessary certificate dated
18 September 2022.
The medications help Mrs Haramis manage her ongoing symptoms following the motor vehicle accident. She did not need these medications before the accident, but she needs them now because she still has pain from the accident.
The Panel confirms Medical Assessor Home’s certificate.

Treatment and care - improving recovery

The Review Panel’s findings in relation to whether the treatment will improve recovery only differ with Medical Assessor Home’s findings in his related treatment certificate dated 18 September 2022 on the basis that Medical Assessor Gorman recorded that Mrs Haramis gave a history that the medications help her to recover enough to be able to perform some of her usual activities of daily living and movements with less restriction and discomfort, rather than assisting her to undergo specific treatment.
The Guidelines at cl 5.16 do not define “recovery” so the word ought to be given its ordinary English meaning in that the medication will help her get better at doing her usual activities she could do without pain before the accident, even if she does not completely recover.
The Panel confirms Medical Assessor Home’s certificate.

Threshold injury

The Review Panel’s threshold injuries’ findings confirm Medical Assessor Home’s certificate dated 18 September 2022.
The Review Panel notes Dr John Korber, radiologist’s report dated 7 April 2020 indicating he reviewed an X-ray of both shoulders and ultrasound of the left shoulder of 31 December 2019. He found that X-ray of the right shoulder showed a large subacromial spur and a reduction of the acromio-humeral distance with sclerosis of the humeral tuberosity and a normal glenohumeral joint.
The ultrasound of the right shoulder showed a full thickness tear which Dr Korber felt likely to be age related rather than traumatic.
The changes on ultrasound in the left shoulder showing an intra-substance tear were also consistent with age related degeneration. However, the immediate symptoms and the ongoing pain and restriction in movement suggests that the appearance was of further partial tear superimposed on the pre-existing degenerative change. Therefore, it is not a threshold injury.
Mrs Haramis was wearing a seatbelt over her left shoulder at the time of the rear-end impact. Only 10 days after the accident Dr Costa recorded her complaints about that body part. Mrs Haramis also gave the history to Assessor Gorman of putting both arms out to stop herself hitting the dashboard.
The Review Panel concludes that the complaints about the other body parts were temporary aggravations of degenerative conditions and are threshold injuries.
The Panel confirms Medical Assessor Home’s certificate.

Review Panel Certification

The Review Panel has reviewed these certificates and the members confirm they agree with the outcome.

[2023] NSWPICMP 234

2 June 2023