AAI Limited t/as AAMI v Jones

[2024] NSWPICMP 713

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as AAMI v Jones [2024] NSWPICMP 713

CLAIMANT:

Mohini Johns

INSURER:

AAI Limited t/as AAMI

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Shane Moloney

MEDICAL ASSESSOR:

Sophia Lahz

DATE OF DECISION:

15 October 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); threshold injury dispute; claimant’s vehicle was turning right at traffic lights; driver at fault failed to stop at a red light and collided with the claimant’s vehicle (T-bone collision); significant high speed impact causing the claimant’s vehicle to spin and come to a halt some 100 metres from the point of impact; Medical Assessor (MA) Cameron certified that injury to ankle, arms, cervical spine, head, knees, lumbar spine, skin, thoracic spine and wrist are threshold injuries; MA also certified that injury to both shoulders are not threshold injuries for the purpose of the MAI Act; Medical Review Panel (Panel) required original ultrasound scans of both shoulders pre-dating accident; delay in production of scans; Held – Panel not satisfied that the scans showed any actual or clinically significant change in shoulder pathology caused by the accident; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the MAI Act)

1.     The Review Panel revokes the certificate dated 11 August 2023 and issues a new certificate determining that the following injuries caused by the motor accident:

·        ankle – soft tissue injury (knees and ankles bilaterally);

·        arms – soft tissue injury to arms bilaterally;

·        cervical spine - soft tissue injury;

·        head - soft tissue injury;

·        hip - soft tissue injury to hips;

·        knee – soft tissue injury to lower limbs (knees and ankles bilaterally);

·        lumbar spine - soft tissue injury;

·        left shoulder – soft tissue injury;

·        right shoulder - soft tissue injury;

·        skin – laceration to both knees;

·        thoracic spine - soft tissue injury, and

·        wrist – soft tissue injury (wrists and fingers bilaterally),

are  THRESHOLD INJURIES for the purposes of the Act.

The following injuries referred for assessment have been assessed and determined not caused by the motor accident:

·        left shoulder – soft tissue injury, and

·        right shoulder - soft tissue injury,

alternatively, each is a THRESHOLD INJURY for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

1. Mohini Johns (the claimant) was driving her vehicle just after midnight. It was in the process of turning right when the driver at fault failed to stop at a red light and collided with the claimant’s vehicle (T-Bone collision) at high speed. The collision was severe, causing the claimant’s vehicle to spin around and come to a halt some 100m away from the location of the accident. Airbags in the claimant’s vehicle deployed. The claimant hit her head on her vehicle’s window during the course of the collision. She feels that she may have lost consciousness although she has clear memories of the accident. An ambulance attended and conveyed the claimant to Blacktown Hospital where she was assessed and discharged. The claimant sustained numerous injuries.

2. As there is a dispute between the claimant and the insurer about whether the injuries caused by the motor accident are threshold injuries under Schedule 2, cl 2(e) of the Motor Accident Injuries Act2017 (the MAI Act), the claimant was referred for assessment by Medical Assessor Ian Cameron who certified under s 7.23(1) of the Act on 11 August 2023 as follows:

The following injury caused by the motor accident:

·     Ankle – soft tissue injury (knees and ankles bilaterally

·     Arms – soft tissue injury to arms bilaterally

·     Cervical spine – soft tissue injury

·     Head – soft tissue injury

·     Hip – soft tissue injury to hips

·     Knee – soft tissue injury to lower limbs (knees and ankles bilaterally)

·     Lumbar spine – soft tissue injury

·     Skin – lacerations to both knees

·     Thoracic spine – soft tissue injury

·     Wrist – soft tissue injury (wrists and fingers bilaterally)

is a THRESHOLD INJURY for the purposes of the Act.

The following injury caused by the motor accident:

·     Left shoulder – soft tissue injury

·     Right shoulder – soft tissue injury

is not a THRESHOLD INJURY for the purposes of the Act.

Medical Assessor Cameron was not required to assess whole person impairment.

THE REVIEW

1. The insurer sought a review of Medical Assessor Cameron’s certificate on the basis that the assessment is incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer submitted that Medical Assessor Cameron erred in relation to causation of the claimant’s shoulder injuries. It submitted that Medical Assessor Cameron failed to consider the relevant material before him which included reports of ultrasounds undertaken on both shoulders on 15 October 2018 (pre-dating the accident) which demonstrated full thickness partial width tears of the supraspinatus in both shoulders. The insurer also submits that Medical Assessor Cameron failed to adequately consider the insurer’s original submissions which refer to those ultrasound reports and raised the issue of the causation of the claimant’s shoulder injuries. The insurer further submits that the radiological evidence revealing that such a condition pre-dated the accident was important evidence that was critical to the proper determination of the matter. The insurer says that Medical Assessor Cameron failed to provide sufficient reasons, given the medical controversy, to support his findings in respect of causation of the claimant’s supraspinatus tears.

2. The insurer’s application for review was opposed by the claimant. The claimant submits there is no evidence to support the insurer’s allegation that Medical Assessor Cameron failed to adequately consider relevant material, especially where he made specific reference to the material referred to him, for the purposes of the assessment. The claimant says that Medical Assessor Cameron provided ample reasons for his findings. The claimant submits that Medical Assessor Cameron was satisfied that the accident caused the referred injuries, including the left and right shoulder injuries, which he found to be not threshold injuries. The claimant submits that those injuries have had a debilitating impact on all aspects of the claimant’s life over the past four years and she has been suffering significant pain and restriction of movement in her upper limbs. The claimant made reference to clinical records of Stan Physio Centre and dashcam footage of the accident which confirm that the collision was severe and did cause injury to the claimant’s shoulders. In the alternative, the claimant submits that the injury caused aggravation and worsening of the claimant’s pre-existing condition in both shoulders.

3. President’s delegate Catherine Freeman issued a Determination of an Application for Review of a Medical Assessment on 11 October 2023 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Cameron’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Cameron’s failure to consider the reports of the ultrasound undertaken on both shoulders dated 15 October 2018 which demonstrated full thickness partial width tears of the supraspanatus tendons in both shoulders. Accordingly, the application for review was accepted.

4. The Review Panel indicated to the parties that it would consider all of the injuries referred to Medical Assessor Cameron unless the parties agreed that the Review Panel’s deliberations should be limited to the claimant’s shoulder injuries. As neither party replied, the Review Panel has assessed all of the referred injuries.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. 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 Medical Assessor.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the MAI Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

THRESHOLD INJURY

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.

3. Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.

4. A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.

5. 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 an injury caused by the accident is a threshold injury for the purposes of the MAI Act.

6. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold 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 threshold psychological or psychiatric injury caused by the motor accident.

   5.4    Diagnostic imaging is not considered necessary to assess threshold injury.

   5.5    A diagnosis for the purpose of a threshold 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 threshold injury for the purposes of the 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;

   b.a review of all relevant records available at the assessment;

   c.a comprehensive description of the injured person’s current symptoms;

   d.a careful and thorough physical and/or psychological examination;

   e.diagnostic tests available at the assessment.

   Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

CAUSATION OF INJURY

1. Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.

2. In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:

   [4] [2022] NSWSC 372.

   “…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   Causation of injury

   6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.

   6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

   ‘Causation means that a physical, chemical or biological 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 judgment.

   6.7There 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.”

OTHER MEDICAL ASSESSMENTS

1. Medical Assessor Paul Nichols assessed the claimant and certified on 15 August 2023 that the motor accident caused injury to the claimant’s teeth and jaw which relevantly are not a minor (threshold) injuries, for the purposes of the Act. That certificate is the subject of a separate review before a differently constituted Review Panel.

2. Medical Assessor Kenneth Howison assessed the claimant and certified on 23 January 2023 that injury to ears was not caused by the motor accident and a decision as to whether that injury was a minor injury was not required. It is not known if either party sought a review of that certificate.

3. Medical Assessor Alexey Sidorov assessed the claimant and certified on 23 January 2023 that mood and anxiety symptoms not amounting to a psychiatric disorder were caused by the motor accident and is a minor injury for the purposes of the Act. It is not known if that certificate is the subject of a separate review.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material:

   (a)    Claimant’s submissions dated 16 September 2022 in support of application for assessment as to minor injury (previously summarised).

   (b)    Claimant's submissions dated 22 September 2023 in reply to insurer’s review application (previously summarised).

   (c)    Certificate of Medical Assessor Ian Cameron dated 11 August 2023 (previously summarised).

   (d)    Liability Notice dated 28 November 2019 declining benefits after 26 weeks due to minor injuries.

   (e)    Amended Liability Notice dated 20 December 2019 confirming declinature of benefits after 26 weeks for minor injuries.

   (f)    Insurer’s certificate of determination – internal review dated 5 July 2022 confirming the previous decisions declining liability.

   (g)    Stanhope Physio Care clinical notes with reports of the following diagnostics scans:

   (i)Ultrasound bilateral ankles performed on 8 August 2019;

   (ii)X-ray of chest, sternum, lumbar spine, pelvis and hips, bilateral forearm, wrist and hand performed on 21 August 2019, and

   (iii)OPG, X-ray and ultrasound bilateral knees, ultrasound bilateral shoulders and X-ray bilateral ankles performed on 6 August 2019.

   (h)Claimant’s further submissions dated 8 January 2024 in response to insurer’s review application.

   The claimant submitted dashcam footage of the motor accident establishes that the collision was severe, causing the claimant’s vehicle to spin and come to a halt some 100 metres away from the location of the accident, resulting in various injuries. It was submitted that the claimant sustained a non-threshold injury as her shoulders were asymptomatic immediately prior to the accident and she experienced significant deterioration and/or worsening in the condition of her shoulders, which should be regarded as a non-threshold injury.

   (i)Ultrasound scans of both shoulders performed on 15 October 2018 (pre-accident) and 6 August 2019 (post-accident)”.history.[BG1] 

2. The insurer relied upon the following material:

   (a)    insurer’s submissions dated 4 September 2023 seeking review of Medical Assessor Cameron’s certificate (previously summarised). Various diagnostics scans.

   (b)    Records of Nirimba Family Practice from 14 October 2022 to
   12 September 2022.

   (c)    Killcare Road Medical Centre records.

   (d)    Blacktown Hospital records.

   (e)    Insurer’s further submissions in reply to claimant’s further submissions re procedural issues and additional evidence. The insurer does not concede that the claimant hit her head on her car window. The insurer notes that the claimant had been diagnosed with full thickness partial tears of the supraspinatus tendon and subacromial bursitis of the left and right shoulder, as recorded in the ultrasound of 15 October 2018, which is only nine months prior to the motor accident. The insurer further submitted that the post-accident ultrasound on 6 August 2019 demonstrated that the tear in both shoulders remained largely the same as it was pre-accident. The insurer notes the length of tear in the right shoulder is 14 x 12 mm which is less than the pre-accident ultrasound of 14 x 22 mm. The insurer notes that the tear in the left shoulder is recorded as being marginally longer, at 16 x 12 mm, compared to 11 x 15 mm. The insurer submits that, bearing in mind that the nature of a rotator cuff tear is a progressive and degenerating condition, the mere fact that the tear may have increased between the 2018 and the 2019 scans is not evidence that the subject accident caused those tears to increase.

   The insurer further submits that, if the accident was responsible for any increase in the rotator cuff tear due to the forces applied to the claimant’s body in the collision, it would be expected that the tears in both shoulders would have increased. The insurer says that is not the case and submits that, on the balance of probabilities, the slight increase in the rotator cuff tear in the left shoulder was a result of the progressive nature of the condition, rather than the subject accident. The insurer also submits that the absence of reference in the clinical records relating to the shoulders, after the ultrasound of 15 October 2018, should not be taken as evidence that the claimant was no longer experiencing shoulder pain before the accident.

RE-EXAMINATION

1. The claimant was assessed on 13 March 2024 by Medical Assessor Shane Moloney whose report is as follows:

   “Mrs Mohini Johns

   MVA  11 July 2019

   Mrs Johns attended the medical suites at PIC on 13 March 2024. She was unaccompanied.

   Pre-accident history

   Mrs John stated that she was married with two adult children. She states that she was active prior to the accident growing her own vegetables, regularly fishing and looking after her ill mother who is now deceased. She vaguely recalled that she had shoulder pain about ten years ago which was treated with physiotherapy and no recent shoulder injuries. I reminded her that her GP had organised an ultrasound of both shoulders due to shoulder pain nine months prior to the accident but she had no recollection of this.

   History of motor accident

   Mrs Johns was driving her car when another vehicle failed to give way and collided with the driver’s side of her car. She has a poor recollection of the impact and was helped out of the car. She feels that there must’ve been some loss of  consciousness and the first recollection is someone trying to wake her up and a neck collar was provided as a precautionary measure. She was taken to Blacktown Hospital where she remained overnight.

   History of symptoms and treatment following the motor accident

   Mrs Johns consulted her GP, Dr Hameed at Quakers Hill, who organised scans and prescribed analgesics. She recalls bruising to the right knee and ankle with abrasions and aches everywhere.  In particular, pain in the right jaw region radiating to the ear. She states that physiotherapy was helpful.

   There have been no further relevant injuries or conditions sustained since the motor accident.

   Current symptoms

   Mrs Johns states that she has persistent pain in the right jaw region which radiates to the head and neck. There is an ache in the right shoulder but the left shoulder was asymptomatic. She gets low back pain radiating into the right buttock and a vague pain down the right leg. The left leg is asymptomatic. There is a sharp pain in the anterior lateral right thigh region and occasionally she gets cramps in the calves and toes. She is able to walk without difficulty and drive short distances but gets anxious behind the wheel. She does her own housework and continues to do the cooking.

   Current treatment

   Mrs Johns takes Lyrica but is unsure of the dose, paracetamol occasionally and Panadeine Forte on alternative days. With severe pain she has an occasional Endone. She undertakes an occasional massage but no physiotherapy and consulted GP when needed.

   Clinical examination

   Mrs Johns states that she is right-handed and her weight was 93 kg and height 165 cm. She is a very vague historian.

   Cervical spine

   On inspection of the cervical spine there was a normal contour and on palpation  tenderness over the right trapezius muscle and cervicothoracic junction with some tenderness over the right paravertebral muscles over all the cervical spine region. No guarding or spasm was noted. On testing range of movement flexion/extension side bending and rotation were all 80% of expected range with no asymmetry.

   On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the upper arms 31 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 26 cm bilaterally (5 cm below the olecranon process).

   Thoracic spine

   On inspection of the thoracic spine there was a normal contour and on testing range of movement, flexion/extension side bending and rotation were all 80% of expected range with no asymmetry. On palpation of tenderness over the right paravertebral muscles over the entire thoracic spine region but no guarding or spasm was noted. No signs of radiculopathy or non-verifiable radicular complaints.

   Lumbar spine

   Mrs Johns walked with a normal gait but was unsteady when walking on heels but could walk on her toes. She was able to squat to 50% of expected range which was limited due to low back pain. On testing range of movement, there was a full range of flexion/extension and side bending with no asymmetry. On palpation there were no signs of guarding or spasm in the lumbar musculature. Straight leg raise on lying was 70° bilaterally with negative sciatic nerve root tension signs.

   On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 41 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 38 cm bilaterally.

   Knees

   On inspection of the knees, no effusions were noted and on passive movement no crepitus was detected. On testing range of movement flexion was 130° bilaterally with 0° extension. There was no ligament laxity.

   Ankles

   On palpation of the ankles no ligament laxity was noted with no effusions. There was a full range of plantarflexion, dorsiflexion, inversion and eversion of both ankles.

   Hips

   There was a full pain free range of movement of both hips with no crepitus detected.

   Shoulders and elbows

   On inspection no muscle wasting was apparent and on palpation, there was tenderness over both acromioclavicular joints. On passive movement, there was slight crepitus in the right glenohumeral joint but impingement tests were negative. Active movement was measured using a goniometer and repeated. There was a slight decrease in active movement of the right shoulder.

   There was a full pain free range of movement of both elbows.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160°	180°
Extension	50°	60°
Adduction	50°	60°
Abduction	160°	170°
Internal Rotation	80°	80°
External Rotation	80°	90°

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	140°
Extension	0°	0°
Pronation	80°	80°
Supination	80°	80°

I compared the pre-and-post accident ultrasound scans of both shoulders provided by the claimant after considerable delay. The length of the tear in the right shoulder is reported as being 10 millimetres shorter in the post-accident scan. The length of the tear in the left shoulder is reported as being 1 millimetre longer in the post-accident scan. The Panel notes that ultrasonography is variable with different machines and testers likely to produce differing results. A difference of 1 millimetre falls within the range of an unchanged tear in the Panel’s opinion.

Shane Moloney”

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5]  The Review Panel adopts the examination findings and reasons of Medical Assessor Moloney with which Medical Assessor Lahz concurs.

   [5] Section 7.26(6) of the Act.

2. The Panel is of the opinion that the changes shown on the scans are not likely to be traumatic in origin. The Panel accepts the insurer’s submission that those changes are more likely to be degenerative and not caused by the accident. Alternatively, if the Panel is wrong in that regard, the Panel is also of the opinion that any soft tissue injury to the shoulders, that is attributable to the accident, did not cause a partial rupture of ligaments, and thus is a threshold injury.

CONCLUSIONS

1. For these reasons, the Review Panel concludes that the certificate issued on 11 August 2023 should be revoked. The new certificate appears at the commencement of these reasons.

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