AAI Limited t/as AAMI v Mooney
[2024] NSWPICMP 817
•3 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Mooney [2024] NSWPICMP 817 |
| CLAIMANT: | William Mooney |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 3 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury; Medical Assessor (MA Home) found claimant’s cervical spine injury not a threshold injury; insurer’s application for review under section 7.26; issue of causation; insurer raised minor nature of accident; Panel considered absence of safety features in vintage car could have exposed claimant to injury and rear end collision did cause injury; radiculopathy now or at any time; David v Allianz, Lynch v Allianz and Allianz v Susak followed and applied; Panel satisfied radiculopathy at any time indicates non-threshold injury caused by accident; credibility and reliability of claimant and his treating doctor raised by insurer; Insurance Australia Limited v Milton applied; no findings of credibility made; Panel satisfied on basis of clinical findings of treating neurosurgeon and MA Home that claimant had a non-threshold C5/6 nerve root injury manifesting in three signs of radiculopathy at the times of their examinations; Panel examined the claimant and found two signs of radiculopathy and were satisfied the claimant had a non-threshold injury still manifesting in radiculopathy; insurer raised issues with subjectivity of testing by MA Home and requested Panel conduct more objective testing; extensive consideration of subjective verses objective testing in the AMA 4 Guides and Motor Accident Guidelines, nature of tests proposed (and dismissed) by the Panel; Held – claimant has a non-threshold injury due to presence of radiculopathy and due to disc protrusion or prolapse; certificate of MA Home affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the combined certificate issued by Medical Assessor Home dated 15 May 2024. 2. Certifies that the cervical spine injury sustained by the claimant in the accident of 1 March 2022 is not a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
William Mooney was involved in a rear-end motor accident on 1 March 2022. He says he injured his neck in the accident, causing symptoms in his hands. He made a claim for statutory benefits with AAMI, the third-party insurer of the vehicle that collided with his vehicle.
The claimant was, at the time 55 years of age and is now 58. The claimant is a medical practitioner specifically an ear, nose and throat surgeon (ENT), and therefore will be referred to as Dr Mooney throughout these reasons.
A medical dispute about whether Dr Mooney’s injury was a threshold injury has arisen in connection with his claim[1] and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
[1] The insurer denied liability to pay ongoing statutory benefits in a letter dated 10 November 2022 (at page 14 of the claimant’s bundle) on the basis the claimant’s injuries were “minor injuries” which was the terminology in the legislation at that time.
On 15 May 2024 Medical Assessor Home determined that Dr Mooney’s injury was not a threshold injury.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 17 July 2024, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 18 July 2024, the delegate convened this Review Panel (the Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Dr Mooney’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages[2].
[2] For accidents occurring after 1 April 2023 benefits are available for 52 weeks. The change in terminology from “minor” to “threshold” injury applies to all claimants regardless of when the accident took place.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue 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.”
If a person injured in a motor accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 9 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
Section 1.6(4) provides that regulations may be made to deem a specified injury as a soft tissue injury or not a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines (the Guidelines) defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless that particular nerve injury manifests in two of the five signs of radiculopathy.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act[3]. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
[3] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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)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.”
Clause 5.4 suggests that the method of assessment set out above appears to be directed to the insurer and the medico-legal or other experts retained by the insurer.
There are no other provisions with respect to the assessment of threshold injuries by claimants, their medio-legal experts or Medical Assessors. The Panel is proceeding on the basis that the provisions in Part 5 apply in this Review.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
[4] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Home’s, further medical assessments and the Review of medical assessments by this Panel[5].
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Applications for review of a medical assessment under s 7.26 are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s7.26(2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s7.26(3A)).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Home examined the claimant on 8 May 2024 and issued his certificate on 15 May 2024. He confirms at [2][6] that he was asked to assess injuries to Dr Mooney’s cervical spine, left hand and right hand.
[6] The references in square brackets are to the sections of the Medical Assessor’s reasons.
Medical Assessor Home at [4] summarises the submissions from both parties at length.
At [7] Medical Assessor Home states “there is no prior history of neck injury.” Medical Assessor Home has a history at [8] of the claimant’s accident as follows:
(a) the claimant was stationary in his car when his vehicle was struck by another car from behind. The vehicle was towed;
(b) the claimant says he lost consciousness and when he came to, passers-by assisted him out of the car;
(c) his wife came and drove him home;
(d) Dr Mooney telephoned a (medical) colleague who advised him to have imaging studies and he had a CT scan of his brain and cervical spine;
(e) he attended Dr Davies on 4 March 2022 complaining of neck pain and right-hand paraesthesia and developed bilateral hand paraesthesia;
(f) he had an MRI on 14 March 2022 and conferred with a colleague Dr Steel, neurosurgeon and has seen him on three occasions;
(g) due to the numbness in his hand, the claimant said he could not work as an ENT surgeon;
(h) Dr Mooney was subsequently struck off by the Medical Board, and
(i) he had 12 months of physiotherapy and currently takes Nurofen and occasionally codeine.
The claimant reported neck pain mainly in the morning easing during the day. He had no right arm or left arm pain but a sense of constant numbness in the thumb, index and middle finger of the right hand. In the left hand there was constant numbness in the middle finger with intermittent paraesthesia in the middle three digits. Dr Mooney said he had restricted neck motion to the right which caused difficulties with driving. Dr Mooney expressed concern about his ability to perform surgery.
While he has been cleared to return to work, he has not done so. The claimant is reported at [10] to be right-handed and exercises in the gym but he can only lift 5 – 6 kgs in the right compared to 20 kgs in the left for a biceps curl.
On examination of the neck, Medical Assessor Home notes:
(a) extension to 4/5 normal range;
(b) rotation to the right at 2/3 normal range and to the left 4/5 normal range, and
(c) lateral flexion to 2/3 normal on the right and 3/4 on the left.
In terms of the five signs of radiculopathy Medical Assessor Home said:
(a) there was no muscle wasting;
(b) there was reduced power in biceps flexion and forearm rotation in the right upper limb, and weakness of finger extension in the left;
(c) there were abnormal right upper limb reflexes but intact left upper limb reflexes;
(d) there was reduced sensibility in the right hand in tips of thumb index and middle digits but preserved in the ring and little fingers, and in the left hand, mild reduction in sensation in the left middle finger, and
(e) Spurling’s test was negative.
After reviewing the documentation, Medical Assessor Home at [15]:
(a) considered the post-accident imaging which indicated mainly C5/6 pathology on the right side which correlated to the first complaints to Dr Davies of sensory change in the median nerve distribution consistent with a C6 nerve root involvement;
(b) the first face to face attendance on Associate Professor Steel documented weakness of extension of the left hand consistent with the left-hand weakness at the assessment examination;
(c) on 5 December 2022 at a further examination with Associate Professor Steel there was further sensory loss and weakness of biceps function in the right arm and reduced reflexes, and
(d) there are therefore objective clinical signs of a right C6 radiculopathy and sufficient clinical signs of a left C7 radiculopathy.
Medical Assessor Home found the claimant’s neck injury was an injury caused by the accident. He found no frank or specific injury to the hands and that the symptoms in the hands were referred symptoms from the neck injury.
On the basis of the cervical radiculopathy, he found the cervical spine injury was therefore a non-threshold injury.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits at [1][7] that the claimant is an ENT surgeon whose medical license was suspended in 2022 for professional misconduct. His license has been reinstated with conditions [2]. During the course of the reinstatement proceedings at the New South Wales Civil and Administrative Tribunal (NCAT) the insurer says:
“ …the claimant made a number of representations to the Tribunal that he was fit and able to perform complex surgeries and various witnesses attested to that fitness which they had observed.”
[7] The references in square brackets are to the relevant paragraph of the various submissions filed by the parties.
The insurer asserts at [3] the claimant complained to Medical Assessor Home of severe symptoms affecting his right (dominant) hand and left-hand symptoms with restriction of neck movement causing difficulty driving. The insurer submits at [4] that this would “render him totally unfit to perform complex (or any) surgeries as an ENT surgeon.”
The insurer refers at [6] to “gross inconsistency” between what the claimant told NCAT and what he told Medical Assessor Home and suggests at [7] this “calls into question the claimant’s credit which was placed squarely in issue by the insurer in the primary proceedings.”
The insurer submits at [8] that the finding of radiculopathy was made on the basis of “subjective responses from the claimant who, as a medical professional and surgeon, has expert knowledge of human anatomy.” The insurer says, “the claimant has a history of misleading authorities.”
The insurer submits at [9] that the claimant has either mislead NCAT or he has misled Medical Assessor Home.
The insurer at [11] submits:
(a) Medical Assessor Home did not engage with the issue of causation;
(b) the claimant conceded in the original submissions that the only issue in dispute was past radiculopathy as the claimant’s neurological symptoms had resolved on the basis of his history to NCAT;
(c) the inconsistency between presentation and the history given to NCAT was not addressed by the Medical Assessor;
(d) the claimant’s “advanced age” suggests the claimant even uninjured would not be able to biceps curl with 20 kgs and there is no comment on his physique;
(e) the insurer had, in its submissions urged there be objective testing undertaken to verify findings;
(f) there are objective measures which could have been adopted including “nerve conduction studies, electromyography and or muscle dynamometry.” The insurer says Medical Assessor Home did not explain why he did not deploy objective measures and requests the Review Panel do so.
On 23 May 2024, the insurer wrote to the claimant’s solicitor in respect of Medical Assessor Home’s decision indicating an application for review would be sought and that:
“So that we may seek further instructions, would you kindly advise in relation to whether the claimant maintains he has ongoing radicular symptoms affecting both hands including his dominant right hand or, rather, his case before the Commission is limited to the submission that a David finding ought be made, as well as the claimant’s intentions generally regarding his CTP claim.”
The insurer says at [12] of its submissions that the claimant instructed his lawyers not to respond to this letter.
Insurer’s original submissions
The insurer noted at [5] that the issues in dispute between the parties were:
(a) whether the pathology identified in the 14 March 2022 was caused by the accident, and
(b) does the claimant have radiculopathy as defined in the Guidelines as a result of that pathology.
The insurer sets out a chronology of various events relevant to Dr Mooney’s professional issues.
The insurer also quotes the statement of the insured driver suggesting the impact was minor, the claimant was not treated by an ambulance or hospital and the police report refers to minor damage to the vehicle.
The insurer refers to there being two versions of the claim form.
The insurer says there are significant issues of credit and the claimant’s history should not be accepted unless supported by objective evidence.
The insurer says the claimant is a “medical professional with expert knowledge of human anatomy” and urges the Medical Assessor to perform objective testing to verify any findings of radiculopathy.
The insurer submits that the opinion of Associate Professor Steel ought be treated with some caution because:
(a) on 4 April 2022 he had a record of bilateral hand numbness only;
(b) on 19 May 2022 there was mild weakness of finger extension in the left hand but power was normal elsewhere and reflexes were normal;
(c) on 7 September 2022 the claimant had pain and sensory distribution bilaterally (no weakness mentioned or reflexes);
(d) Associate Professor Steel was asked to amend his report of 19 May 2022 to include the word radiculopathy;
(e) on 5 December 2022, the doctor recorded an increase in the claimant’s symptoms of weakness, reflexes and sensory disturbance;
(f)
the claimant’s solicitor then wrote to the doctor on 13 December 2022 and on
22 August 2023 Associate Professor Steel reports the findings and diagnosis of radiculopathy including the weakness of bicep function in the right arm;
(g) the insurer says there was no consultation between May 2022 (no power loss or weakness in the right arm) and December 2022 (weakness reported in the right biceps), and
(h) Associate Professor Steel has not explained the change in description of clinical presentation.
The insurer submits there are “significant concerns as to the credibility of Professor Steel’s reports and findings to such extent that they ought to be disregarded.”
Claimant’s submissions
The claimant says that credit and factual issues arising from the NCAT proceedings are not relevant to the current proceedings about whether the claimant has a threshold injury or not. Therefore, the Medical Assessor’s failure to engage with those matters is not an error.
The claimant submits:
(a) the Medical Assessor undertook a detailed clinical examination and reviewed the documentation;
(b) the claimant did not submit that there were no ongoing neurological symptoms and the reference to David v Allianz Insurance Australia Limited[8] was in the context that Associate Professor Steel had found two clinical signs of radiculopathy and that the Medical Assessor could have relied on those findings at that time to support a finding of non-threshold injury;
(c) the Medical Assessor did not mention inconsistencies because he did not consider that needed to be addressed and this is not an error;
(d) the age of the claimant and his ability to lift 20 kgs in the left hand is not an issue because there is no evidence of a false history;
(e) in terms of the “objective measures”, Associate Professor Steel had explained nerve conduction studies were no appropriate. The claimant was examined and objective clinical tests as to reflexes and power were deployed, and
(f) while the insurer had raised issues about the forces involved, the claimant says his car was an older model without “crumple zone technology.”
[8] [2021] NSWPICMP 227 (David).
The claimant says that the refusal to respond to the insurer’s letter of 23 May 2024 is irrelevant and the article in the Sydney Morning Herald provided is “mere fodder for the media” and that the claimant and the author of the article, Kate McClymont “have a chequered history” leading to defamation proceedings that are currently on foot.
Claimant’s original submissions
The claimant confirms that the two issues are whether there is pathology caused by the accident and if so whether that has produced radiculopathy.
The claimant says credit is irrelevant in respect of a dispute relating to threshold injury and that all the Commission has to determine is whether the claimant’s injuries are or are not threshold injuries.
The claimant also challenges the insurer’s suggestion that Associate Professor Steel’s credibility is in issue. The claimant says these are speculation and not based on evidence.
The claimant relies on the David case and says the issue is not just whether the claimant has radiculopathy at the time of the assessment, but whether he has had radiculopathy at any time since the accident. The claimant says that Associate Professor Steel’s reports of
5 December 2022 and 22 August 2023 confirm the presence of radiculopathy.
Procedural matters
On 2 August 2024, the Panel issued directions to the parties seeking bundles of documents that the parties were relying on in the Review proceedings.
The insurer’s bundle of 266 pages was uploaded on 20 August 2024 and on 22 August 2024 the claimant’s bundle of 148 pages was uploaded to the portal.
The Panel met on 17 September 2024 and reported to the parties on 19 September 2024.
The claimant was asked whether he was alleging a frank or specific injury to his hands or that his cervical spine injury had resulted in symptoms in his hands.
The Panel advised the parties that:
(a) the Panel would be looking at whether the protrusion at C5/6 is the complete or partial rupture of soft tissue and whether it resulted from the accident as well as whether the claimant has or has had radiculopathy at any time since the accident;
(b) it was the preliminary view of the Panel that the GP records did not indicate any pre-accident complaints of neck injury or a neck condition, and
(c) the Panel would be considering the insurer’s submissions about reliability and credibility of the claimant and would have regard to the case of Insurance Australia Ltd t/a NRMA Insurance v Milton.[9]
[9] [2016] NSWCA 156.
The Panel asked for photographs of the claimant’s car and confirmation of whether the driver’s seat had an adjustable or any headrest. The Panel also asked for a complete set of Associate Professor Steel’s notes.
The Panel advised the parties of the re-examination date and gave the parties the opportunity to make any final submissions addressing any of the matters raised in our report.
Responses from the parties
On 18 October 2024 the claimant responded providing a statement, photographs of the inside of his car, the exterior of his car, the smash repair details, all of Associate Professor Steel’s reports and the report of an MRI of the Cervical Spine dated 23 September 2024.
The insurer responded on 31 October 2024 submitting:
(a) the Panel must comply with the Acts and Guidelines including the objects of the Acts (both the MAI Act and the Personal Injury Commission Act 2020). The insurer refers to the object to deter fraud, encourage the just, cost effective and quick resolution of disputes and that decisions are to be timely, fair and of a high quality and promote public confidence in decision-making by the Commission [5];
(b) the insurer presses its submission that the Panel should “administer objective testing” rather than rely on the claimant’s subjective responses [6];
(c) the insurer refers to the claimant as an expert knowledge of anatomy” and “a proven history of dishonesty and misleading authorities” [7];
(d) the insurer suggests there “is some uncertainty about the relevance” of the decision of David [8];
(e) the insurer says there are significant doubts in relation to the findings of Associate Professor Steel in relation to radiculopathy [9];
(f) the insurer says the claimant has only partly responded to the Panel’s direction and has not included the report of Associate Professor Steel dated 9 October 2024 [12], and
(g) the insurer calls on the Panel to review the radiological images not just the reports [13].
The insurer concludes by saying at [14]:
“The insurer acknowledges that the outcome of the present review will have significant implications in the context of the claimant's ability to practise medicine, and in particular perform surgeries, in the future, again noting the symptoms he reported to Assessor Home are wholly and grossly inconsistent with any capacity in that regard which will be relevant to the Medical Tribunal and Board.”
The claimant responded with submissions dated 7 November 2024 saying:
(a) Dr Mooney has been found by both Associate Professor Steel and Medical Assessor home to have radiculopathy [1];
(b) the insurer submits that Associate Professor Steel’s opinion should not be accepted and the insurer appears to be suggestion “some collusion between the claimant and Associate Professor Steel” and there is no evidence of this [2];
(c) Medical Assessor Home found radiculopathy [3] –[4];
(d) following the decision of David two medical examiners have now found radiculopathy [5];
(e) the claimant has produced the records of Associate Professor Steel [7], liaised with his office [8] and there is no report from the 9 October 2024 attendance on Associate Professor Steel [9] and provides evidence to support this;
(f) the claimant refutes the insinuation that he or his legal representatives have been less than frank and that there is no collusion between or fraud on behalf of the claimant and Associate Professor Steel [10] – [11], and
(g) whether the claimant had the capacity for employment or is able to perform surgery are not matters for Medical Assessor Home or the Panel [12].
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant signed and dated the application for statutory benefits on 28 June 2022 declaring the contents were true and correct[10]. Dr Mooney says he was stationary when, without warning he was hit from behind. He says his head hit the steering wheel and he lost consciousness. He regained consciousness and was helped from the car, The other driver “assumed all blame for the accident.” The claimant says, “I am a surgeon, and I checked movement and sensation, I was oriented in place person and time and so I did not ask for an ambulance.”
[10] Page 39 of the claimant’s bundle.
Dr Mooney says he immediately had, and continues to have neck pain and he has developed altered sensation in both hands, has had a CT and MRI of his head and neck and seen Associate Professor Steel who diagnosed an acute prolapse of the C5/6 disc. He says he has “no prior history of neck injury.”
The claimant says he is a full-time self-employed surgeon earning $30,000 a week and has not worked since 5 April 2022.
It appears the claimant also completed a claim form from the former scheme[11] which is signed and dated 28 June 2022. The details in this form are similar to those in the MAI Act claim form although the claimant’s weekly income was said to be $35,000 before tax and he has provided a list of injuries comprising a closed head injury and neck injury. Dr Mooney also completed a pain diagram which is consistent with the history. He also reported the speed of the impact was 30 – 40 kms per hour.
[11] Page 34 of the insurer’s bundle.
Photographs of the claimant’s car have been provided[12]. Additional photographs were provided by the claimant on 18 October 2024 at the direction of the Panel. These show:
(a) the interior of the car which has fixed headrests;
(b) the steering wheel which is made of a wood or wood like material;
(c) seat belt buckles but not the lap / sash part of the seat belt, and
(d) two photographs showing deformation of the passenger and driver side panels above the wheel arch. This does not show the crumpling of the rear end into the boot area usually visible in rear end collisions involving more modern cars.
[12] Page 46 of the insurer’s bundle.
The quote from the smash repairer indicates that repairs were required to each of the left and right chassis rails (part of the frame upon which the body of the car is mounted). There were many other repairs done to panels and parts with the total $20,275 including goods and services tax.
The police report was completed on 28 March 2022[13].
[13] Page 49 of the insurer’s bundle.
A statement from the driver of the car was obtained, apparently by the insurer’s investigator[14]. The driver accepts he was in the wrong, but says the impact was minor. He says after the accident he knocked on the driver’s side window and the claimant had his head on the steering wheel. He reports that the claimant said he was fine that he was going to work to perform surgery.
[14] Page 56 of the insurer’s bundle.
The insurer has provided a report from Procare dated 20 December 2022 obtained to assist with the calculation of the claimant’s PAWE and of limited assistance in this medical dispute[15].
[15] Page 75 of the insurer’s bundle.
The claimant provided a statement dated 16 October 2024. In it he says:
(a) his first contact with Associate Professor Steel was via telephone on 5 April 2022 in which they discussed his injuries and symptoms and it was suggested the claimant no operate until he was reviewed in person;
(b)
he was reviewed in person on 19 May 2022 and then on 7 September,
5 December 2022 and 7 July and 9 October 2024;
(c) he thought the first mention of radiculopathy was in the report of 19 May 2022;
(d) he has recently had an MRI and last conferred with Associate Professor Steel on 9 October 2024, and Associate Professor Steel confirmed decreased sensation, power and reflexes in the affected nerve root distribution, and
(e) his vehicle is a 1973 Alfa Romeo Spider, fitted with headrests which are not adjustable, a rigid wooden steering wheel with no air-bags, sash seat belts only which are fixed and non-retractable.
Treating medical records and reports
The claimant has provided records from his General Practitioner (GP) Practice in Double Bay[16]. The notes commence in September 2018 with complaints of anxiety in the context of his professional issues. On 13 October 2019, the claimant fractured his left tenth rib after a fall. There were no further attendances for this injury and no other parts of the body mentioned in the notes.
[16] Page 47 of the claimant’s bundle.
There were several further attendances for anxiety and stress surrounding his professional issues as well as routine attendances for scripts and vaccinations.
A CT scan of the brain dated 2 March 2022 addressed to Dr Mooney was normal.
On 4 March 2022 the claimant attended Dr Davies referring to the car accident, noting that he was driving a 1973 Alpha Spider with no airbag and the car was written off. The claimant was aware of bilateral sensory change in a median nerve distribution and was referred for a CT scan of the brain and a referral to Associate Professor Steel was provided on
4 March 2022.
The MRI of the brain on 14 March 2022 addressed to Dr Davies showed no relevant abnormalities. The MRI of the cervical spine on the same date reported findings at C5/6 and C6/7 as follows:
(a) reduced disc height with mild disc dehydration at C5/6 and C6/7;
(b) right paracentral disc osteophyte complex causing right sided neural foraminal narrowing and possible compression on the right exiting C6 nerve root;
(c) left paracentral disc osteophyte complex causing left sided neural foraminal narrowing and compression on the left exiting C7 nerve root, and
(d) mild bilateral facet joint arthropathy.
The claimant attended on 25 March 2022 with a number of issues none of which appear to relate to the accident although the extensive action list documented by Dr Davies includes a diagnostic imaging request for a wrist ultrasound of both wrists.
The claimant saw Dr Davies again on 15 September 2022 complaining of “ongoing sensory and fine motor issues in both hands with associated recurrent neck pain” which could have impacted on his return to work. A trial of Lyrica was suggested but he was not keen on this.
On 15 November 2022 the claimant was advised about the “role for physio” although no referral for physiotherapy appears to have been provided. Dr Mooney attended again on
29 November 2022 reporting sensory and motor disturbance and to review Associate Professor Steel’s most recent report.
There were further attendances and on 13 April 2023 the claimant expressed concern about “implications of fine motor work in the context of persistent bilateral hand symptoms.” On
1 August 2023 he discussed returning to work and his current activities.
The notes conclude on 19 October 2023.
Associate Professor Steel
Associate Professor Steel wrote to Dr Davies on 4 April 2022. This appears to be following a consultation with the claimant by phone. He has a history of the car accident with “a significant flexion extension motion of his neck” leading to Dr Mooney hitting his head on the steering wheel and a brief loss of consciousness. The claimant described immediate onset of pain in the neck and gradual progression of bilateral hand numbness over the following few weeks. He recommended an MRI and said, “as the numbness is severe enough to interfere with him safely performing surgery, he will stop operating until further review.”
The claimant returned to Associate Professor Steel in person on 19 May 2022[17]. The Associate Professor took a further history of the accident including that the offending vehicle hit him at around 50 – 60 kms per hour. The loss of consciousness was said to be “transitory.”
[17] Page 67 of the insurer’s bundle.
Associate Professor Steel takes a further history of the development of symptoms:
(a) over the first week Dr Mooney developed more significant neck pain and bilateral arm pain in a C6 distribution with symptoms more pronounced on the right than the left;
(b) pain in the arms and forearms with paraesthesia particularly in the right hand, thumb and index finger;
(c) he had dysesthesia initially and minor sensory disturbance in the feet;
(d) symptoms improved with Nurofen;
(e) symptoms continue worse with activity and intensified with inflection;
(f) he had difficulty performing surgery because of the pain and mild motor dysfunction, and
(g) symptoms improved after he stopped work on 4 April 2022.
On examination there was no wasting or twitching but there was restricted movement. There was mild weakness of finger extension on the left hand and the remainder of his upper extremity power was normal. Reflexes were increased in the lower legs and normal in the upper extremities.
He reviewed the 14 March 2022 imaging noting it:
“… shows an acute C5-6 disc protrusion which causes mild spinal cord distortion. This is more prominent on the right side. The posterior portion of the C5-6 disc is hyperintense in keeping with an acute protrusion. The disc herniation has migrated slightly inferiorly behind the C6 vertebra, narrowing the foramen at this level.
The axial images show a right C5-6 foramen. The left C5-6 foramen looks clear. At
C6-7 there is mild canal stenosis. However, the foramen at C67 looks tight. This may account for his left hand dysfunction.”
Associate Professor Steel thought the paraesthesia would improve and that the protrusion would settle with time.
The Panel notes that the insurer has raised an issue with Professor Steel’s report dated
19 May 2022. An email exchange[18] between the claimant and the insurer in November 2022 confirms that the claimant approached Professor Steel who “confirmed radiculopathy” and amended his original letter, which the claimant sent to the insurer on 28 November 2023.
[18] Page 70 of the insurer’s bundle.
The Panel has compared the two letters from Professor Steel[19] and notes they are both dated with the same date (that is the original letter was amended and it is not a fresh report following a new attendance). The only difference the Panel can see is that the diagnosis has changed from (the original and the change has been underlined):
[19] The original is at page 128 of the claimant’s bundle and the revised version is at page 67 of the insurer’s bundle.
“Acute whiplash injury with right C6 and potentially left C7 nerve irritation and acute
C5-6 disc protrusion”, to
“Acute whiplash injury with right C6 and potentially left C7 radiculopathy and acute
C5-6 disc protrusion”.
The Panel does not consider this is out of the ordinary. A treating surgeon would have no regard for the Motor Accident Guidelines but, when asked about the Guidelines the surgeon has provided an opinion. While it would have been preferable for Associate Professor Steel to have written a new report updating the previous one and referencing the request and explaining the changes made, the Panel notes he is a treating surgeon and not an expert used to providing reports in an insurance or legal setting.
On 7 September 2022 Associate Professor Steel notes the claimant was continuing to report pain and sensory disturbance which was fluctuating but not improving and his opinion was of “symptomatic bilateral C6 radiculopathy.”
Associate Professor Steel reported to Dr Davies again on 5 December 2022. The claimant’s neck pain was said to be stable, but he had “significant symptoms in both arms with sensory loss in the C6 dermatome which was causing problems with writing and picking up small objects.
On examination there was mild weakness of biceps function in the right arm and weakness of left finger extension in the left hand. Power was otherwise normal. The right biceps jerk was reduced compared to the left, but all other reflexes were normal. There was sensory disturbance in a right C6 dermatome.
The Associate Professor expressed the opinion that there were right C6 and left C7 radiculopathies. Among the recommendations was a steroid injection around the C6 level and a progress MRI. Surgery was to be considered if conservative measures fail.
The insurer has also provided a copy of a letter from the claimant’s solicitor to Professor Steel dated 13 December 2022 referring to the Guidelines definition of radiculopathy and querying whether the claimant met any of the two criteria and if so how[20]. The letter refers to an undertaking from the claimant to pay for a report from Associate Professor Steel. This is also not out of the ordinary, the Panel notes that claimants will often pay for medico-legal reports or for reports and records from treating practitioners. Costs can be recovered as part of the dispute resolution process.
[20] Page 74 of the insurer’s bundle.
The claimant relies on a report from Associate Professor Steel dated 22 August 2023.[21] In that report, the Associate Professor says he has reviewed the definition of radiculopathy from Part 6 of the Guidelines and says” based on the history … as well as examination, I believe Dr Mooney’s injuries can be categorised as ‘non-minor’.”
[21] Page 12 of the claimant’s bundle.
He expressed this view based on the claimant having weakness of bicep function in the right arm which is innervated by C5 and C6 nerve roots and reproducible sensory loss anatomically localised to the C6 dermatome. As these are two of the five signs of radiculopathy, he said the claimant has a non-minor injury.
An email from Associate Professor Steel’s[22] secretary confirms that there are no additional attendances and that the dates of the attendances are contained within his letters and reports.
[22] In the additional bundle of documents lodged by the claimant.
Medico-legal reports
The insurer relies on a report of Dr Korber, radiologist, dated 12 December 2022. He says that the accident did not appear to have been significant noting that an ambulance was not called, airbags did not deploy, and the claimant did not go to hospital. The Panel notes there were no airbags in the claimant’s vintage Alpha Spider. Dr Korber records that the claimant went to work and operated on the day of the accident and also for the remainder of the week and for a month after the accident.
Dr Korber reviewed the MRI of the cervical spine undertaken two weeks after the accident and confirms the existence of a disc protrusion at C5/6. He expresses the opinion it could be recent as it is “difficult to age disc protrusions”. The C6/7 changes he says are degenerative but that the timely presentation to his GP suggested a C5/6 pathology before the GP had seen the images.
He further says:
“ … in this particular circumstance it would be difficult to say that there had not been an injury as a result of the motor accident given the clinical circumstances. I have taken the precaution of discussing the imaging findings with a colleague and he agrees.”
Radiology
The MRI of 1 October 2024 was performed at the request of Dr Davies for “neck pain with radiculopathy.”
The conclusion was:
“Multilevel spondylotic changes most notable is the right sided foraminal stenosis at the C5/6 level and the bilateral foraminal stenosis at the C6/7 level with potential irritation of the right C6 and bilateral C7 nerve roots respectively.”
RE-EXAMINATION FINDINGS
Dr Mooney was assessed by Medical Assessors Couch and Kenna on 14 November 2024 in the Commission’s medical suites at 9.00am.
Dr Mooney was co-operative in both the history taking segment of the re-examination and in the physical re-examination itself.
History provided by Dr Mooney
Pre-accident medical history and relevant personal details
Dr Mooney said that he works out daily in the gym and still surfs.
Before the motor vehicle accident of 1 March 2022, he said he had no neck pain and that his neck, arm and hand symptoms arose only after the motor vehicle accident.
By way of professional background, which he freely stated, he was an ENT surgeon and had been suspended by the Medical Council for 12 months. He was in the process of returning to work under clinical supervision and recommencing surgery and is hoping to commence both private practice and obtain a public hospital appointment as well. He said his return to the medical profession was complicated by COVID and ongoing issues with the Medical Council.
History of the motor accident
The claimant was driving his 1973 built Alfa Romeo Spider coupe, and was stationary on Bellevue Road, in the eastern suburbs of Sydney when his car was rear-ended by a VW Golf. There was no secondary forward collision with any other vehicle and his vehicle sustained rear-end damage and was towed from the scene.
Ambulance and police did not attend. Dr Mooney believes he was knocked unconscious for a brief period of time, as his head hit the steering wheel. He was assisted from the car by passers-by. His wife then attended the scene and drove him home.
When asked about the safety features in his car, he said it was a vintage car (he showed us one of the photographs already before the Panel at the time he was describing the accident) and the head rest was fixed to the upper seat. He also said the headrest was very low, at or below his shoulder level. He confirmed there were no airbags in the car and that the seat belts were lap only and not a lap-sash type of seat belt. He said his seat belt did not retract or have any of the modern safety features.
He estimated the impact of the rear-end collision was at about 40kph but he was not entirely sure.
History of symptoms and treatment following the motor accident
Dr Mooney said he was in shock after the accident and stated that he started to experience both neck pain and headaches later in the day and then saw his GP about two to three days later.
Within a period of about a week, his neck pain increased, and he noted a decreased range of movement of the neck, with onset of symptoms into the right upper limb, particularly involving the right thumb and index finger.
He was referred for a cervical MRI which was performed on 14 March 2022.
As a result of increasing level of symptomatology, he then consulted Associate Professor Steele, a neurosurgeon, for further advice. He saw the neurosurgeon in April, May, June, September and December 2022, but there was no injection therapy, and no surgical management suggested at that point in time.
Due to persistent numbness of the right hand, Dr Mooney ceased work as an ENT surgeon around that time although he acknowledged that he was struck off by the Medical Council around that time and has not practised since.
It was around that time that he commenced a 12-month period of physical therapy at Bronte Clinic.
Dr Mooney was asked about his relationship with Associate Professor Steel, and he said that he only contacted him as a result of his worsening symptoms and the development of what he considered to be neurological signs.
He denied any personal relationships with Associate Professor Steel but reached out to him as a result of his known (in medical circles) expertise in this area.
Current state
Dr Mooney says he continues to experience pain in his neck and altered sensation involving the thumb and index fingers of the right hand, stating that they are less sensitive, and he describes the middle finger as having a “woody” feeling.
With regards to the left hand, he describes the first thumb and index finger as not altered in sensation, but the thumb having again a “woody” feeling.
He notes that fatigue in his arms is an issue, associated with diminished power, and he is right-handed.
There is no right arm pain, but he confirmed that the complaint is one of altered sensation involving the thumb, index and middle fingers, particularly the thumb and index finger. Whereas in the left hand, there is complaint of altered sensation and numbness involving the middle finger, but no radicular pain involving either the right or left upper extremities.
CLINICAL EXAMINATION
General presentation
Mr Mooney is a very fit looking individual. His height was measured at 175cm and his weight at 84kg. He had good muscle contour.
Cervical spine (cervicothoracic)
There is no clear evidence of muscle spasm involving either apophyseal pillar. There was no guarding, but Dr Mooney did complain of pain in the neck.
Asymmetry of cervical motion was present as follows:
MOVEMENTS RANGE EXHIBITED Flexion 100% full Extension Two-thirds restriction Rotation to the right One-third restriction Rotation to the left Two-thirds restriction Lateral bending to the right One-third restriction Lateral bending to the left 50% restriction
A number of neurological tests were administered as follows:
Reflexes
REFLEX LEFT RIGHT Triceps jerk Normal Normal Biceps jerk (C5/6) Normal Abnormal Brachioradialis (C6) Normal Abnormal
The right biceps reflex quickly fatigues on repetition and amplitude and was unresponsive after five to six taps. The right brachioradialis is of lower amplitude than the unaffected left and is not as brisk.
Sensation
Sensation was tested by pin prick and light touch with a tissue with Dr Mooney’s eyes closed. Altered sensation involving C6 dermatome was evident.
There is decreased sensibility in the right thumb and index finger which follows a C6 nerve root pattern.
In the left hand, there is alteration of sensation involving the middle finger of the left hand. The thumb and index of the left hand are unaffected with normal sensation.
Muscle wasting or atrophy
The claimant’s upper arm girth was measured 10 cm above the olecranon and the forearm girth measured 10 cm below the olecranon.
LEFT (cm) RIGHT (cm) Upper arm 32 33 Forearm 28 29
The 1cm difference is not clinically significant and could be explained by Dr Mooney’s right-handedness.
Muscle Power
Muscle power was tested by pitting each of the claimant’s arms against Medical Assessor Kenna’s right arm. It was possible to overcome Dr Mooney’s left elbow flexion, but the result was not significant enough to call it a weak response. The results are noted and:
(a) 5 is active movement against gravity with full resistance
(b) 4 is active movement against gravity with some resistance
(c) 3 is active movement against gravity only, without resistance
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
Dr Mooney appears to have rebuilt power to his right upper arm by regular weight training. Due to the normal power findings, further testing (such as with a dynamometer) was not required.
Nerve root tension tests
The following tests were undertaken.
TEST RIGHT LEFT Passive neck flexion Normal Normal Brachial plexus test Normal Normal
Review of radiology
The claimant did not bring his imaging studies with him, but copies of the reports (and Dr Korber’s report) were reviewed. In the light of the presence of signs of radiculopathy, we did not think it necessary to view the radiology and further delay the finalisation of these proceedings.
CONSIDERATION OF THE ISSUES
Is the claimant’s evidence reliable?
The insurer’s submissions make it clear that AAMI has significant concerns about the claimant’s credibility as a witness and the reliability of his evidence.
The Panel has considered the decision of Justice Beech-Jones in Insurance Australia Limited v Milton,[23] where his Honour said:
[45] “… NRMA’s submissions implicitly attribute to the Review Panel an adjudicative role which required it to address and resolve every disagreement between it and Mr Milton relevant to its application to have Mr Milton join the scheme. That was not the function of the Review Panel. Instead the nature of the function it performed was similar to that of the Medical Panel in Wingfoot which the High Court described as follows (at [47]):
‘The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions … The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.” (emphasis added).
[46] This passage is applicable to Review Panels acting under s 63 of the Motor Accidents Compensation Act 1999 … There is no relevant difference between their functions and the functions of a Review Panel constituted under the LCS Act.”
[23] [2015] NSWSC 1392. While that decision was the subject of an Appeal, the Court of Appeal approved the
The function of a Review Panel under the MAI Act is no different to that of a Review Panel under the Motor Accidents Compensation Act 1999. The Panel does not therefore propose to make any finding concerning the claimant’s credibility or reliability. The Medical Assessors have examined the claimant, formed their view, and given their opinion as to whether or not the claimant has or does not have a threshold injury caused by the accident.
Did the claimant sustain injury in the car accident?
The insurer suggests that the impact of the accident was minor, the police did not attend, ambulance were not called and the car the claimant was driving sustained minor damage.
The Panel notes the claimant was driving a vintage car without adjustable head rests. The claimant is tall and says the headrests in the car came up to his shoulder. Having seen the photographs and based on the Medical Assessor’s notation of the claimant’s height the Panel is of the view that the claimant’s neck was unprotected from a hyperextension / hyperflexion (whiplash) injury and was more vulnerable to injury than if he was driving a more modern car. The Panel also notes that the claimant’s car had lap belts only and not a retractable lap-sash (across the shoulder) self-tensioning belt which could have held his upper body against the seat again affording him more protection. The type of seat belt would further expose the claimant to the risk of injury. Finally, the Panel notes the smash repair documents which suggests chassis damage occurred and the photographs which show deformation damage to the rear of the car.
The Medical Assessors are, in their clinical judgment, satisfied that the type of car that the claimant was driving and a minor to moderate impact from behind could have led to a cervical spine injury. Although the forces involved might be low, the age of the car and the absence of modern safety features could lead to greater injury than in a usual or typical rear end collision involving a more recent model car.
The Panel notes the claimant gave a history of complaints of pain and symptoms since the accident and he saw his GP three days later. His complaints of neck pain and symptoms in his upper limbs have been consistent since the accident. The Panel accepts that the claimant did sustain a cervical spine injury in the accident.
The Panel notes that the claimant’s symptoms have varied over time and that, for example, the neurological symptoms did not emerge immediately. It is the clinical judgment of the Medical Assessors that this is not unusual. An injured person sustains an injury, the injury causes damage to tissue, the tissue reacts and becomes inflamed, inflamed tissue subsides or can further inflame with innocuous activities. In the claimant’s case he sustained in the Panel’s view an injury to his disc which has protruded and caused irritation and compression of a nerve root. Symptoms would be expected to fluctuate. Symptoms may subside if the inflammation reduces or the disc material shifts or return if the inflammation returns or the disc material further protrudes.
When is an injury assessed?
Both parties refer in their submissions to the case of David.
In a WPI dispute a medical assessor or Review Panel is assessing the degree of whole person impairment resulting from injuries caused by the accident. They are required to make a finding on causation and then undertake an assessment of impairment as the claimant presents on the day[24] once injuries have stabilised[25]. In a threshold injury dispute a medical assessor or a Panel is determining whether the injury sustained by the claimant in the accident is a threshold or non-threshold injury and for that reason the focus is on the injury itself and not any resulting impairment or disability or how the claimant presents at the time of the assessment. This therefore requires analysis of the injury sustained at the time of the accident and how it has manifested over time.
[24] Clause 6.21 of the Guidelines.
[25] Clause 6.20 of the Guidelines.
In David at [84 – 105] the Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” The Panel found at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time after the accident, the injured person falls outside the definition of minor (now threshold) injury.
Another Panel in Lynch v AAI Limited t/as AAMI[26] considered the same issue in the context of a psychological or psychiatric injury. The Panel in that case gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury was and is a non-threshold injury even though the claimant may have recovered from it.
[26] 2022 NSWPICMP 6 (Lynch).
David was cited in Allianz Australia Insurance Limited v Susak[27]. While there appears to have been no argument in Susak about the correctness or otherwise of David, the premise that radiculopathy at one time satisfies a finding of non-threshold injury formed the basis of Acting Justice Griffiths’ decision.
[27] [2024] NSWSC 1359 (Susak)
The Panel agrees with and adopts the reasoning of the Panel in David and Lynch and accepts that the claimant can be found to have a non-threshold injury regardless of the state of the injury (healed, recovered or in remission) at the time the Panel undertakes its re-assessment.
The Panel will therefore look at both:
(a) whether the claimant has had, at any time since the accident a cervical radiculopathy indicating a nerve root injury sustained in the accident, and
(b) whether the claimant currently has a cervical radiculopathy indicating a nerve root injury sustained in the accident.
Has the claimant had, in the past, a cervical spine radiculopathy?
Is Associate Professor Steel’s opinion reliable?
Dr Mooney denied any personal relationship with Associate Professor Steel. He knew of him as they are both medical practitioners and he knew of his expertise.
When Dr Mooney’s symptoms did not improve and developed further, he sought a referral from his GP to Associate Professor Steel.
Associate Professor Steel is, according to his letterhead, a consultant neurosurgeon and spine surgeon and an Associate Professor of the University of Notre Dame and a Senior Lecturer of the University of New South Wales. The Medical Assessors have reviewed the history, the correspondence and the reports and are of the view that Associate Professor Steel has reported treated the claimant conservatively and appropriately and reported objectively.
The Panel notes AAMI has challenged his opinions, but not his clinical findings.
Associate Professor Steel found on 5 December 2022 mild weakness of biceps function in the right arm, a right biceps jerk reduction and sensory disturbance in a C6 dermatome. He therefore found three signs of radiculopathy. Associate Professor Steel found signs related to the same nerve root as Medical Assessor Home and the Panel.
Other examinations
Medical Assessor Home undertook an independent medical assessment of the dispute for the Commission and examined the claimant earlier this year. While the insurer has challenged his reasons and his failure to undertake more objective testing, the insurer does not appear to be challenging the accuracy of the Medical Assessor’s clinical findings recorded in the decision.
Medical Assessor Home found on 15 May 2024 a reduction in power of the claimant’s right biceps, reduced biceps and brachioradialis reflexes and reduced sensation in some of the right fingers. Like Associate Professor Steel he found three signs of radiculopathy in a C6 dermatome indicating injury at the C5/6 nerve root level.
The absence of any finding of weakness of biceps function by the medical members of this Panel can be explained by the claimant’s return to his gymnasium workouts and strength training.
Both Medical Assessor Home and Associate Professor Steel have found radiculopathy within the meaning of cl 5.8 of the Guidelines during the course of their examinations and the Panel accepts on the basis of their clinical findings that the claimant did sustain a nerve injury manifesting in radiculopathy as a result of the accident.
Does the claimant currently have a cervical spine radiculopathy?
The clinical findings of Medical Assessors Couch and Kenna included reduced and fatigued (on repetition) reflexes in the right biceps and brachioradialis. The left side was normal. The right biceps and brachioradialis reflexes are powered by the nerve exiting on the right side at C5/6 in a C6 dermatome.
The Medical Assessors also found altered sensation involved the thumb, index and middle fingers of the right hand. The left hand had only some mild reduction in sensibility involving the left middle finger. Sensation in the left thumb, index and middle fingers of the right hand is provided by the nerve exiting the right side at the C5/6 in a C6 dermatome.
On examination by two Medical Assessors, there were two persistent signs of radiculopathy. The Medical Assessors note that these findings correlate with the radiology performed two weeks after the car accident with findings of a C5/6 disc protrusion impinging on the mainly right sided exiting nerve roots at that level.
Is the testing by the Medical Assessors objective?
The insurer submitted, in the original medical assessment matter, that the claimant is a medical practitioner who has “expert knowledge of human anatomy”[28] and that the Medical Assessor should “undertake objective testing.”[29]
[28] 22 January 2024 submissions at paragraph 17(a).
[29] Paragraph 17(b).
The insurer submitted on 12 June 2024 that Medical Assessor Home’s findings were based on “subjective responses from the claimant who, as a medical professional and surgeon has expert knowledge of human anatomy.”[30] The insurer suggests[31] a number of “objective measures” which the Panel should employ when conducting the Review including:
(a) nerve conduction studies;
(b) electromyography (EMG), and
(c) muscle dynamometry.
[30] Paragraph 8.
[31] Paragraph 11(f) and 13(c).
Subjective vs objective testing in the Guidelines
The permanent impairment chapter of the Guidelines provides for a diagnostic related estimate (DRE) category II (5% impairment) where there are (amongst other things) non-verifiable radicular complaints which are defined in Table 6.8 as “Symptoms … that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs).” A DRE category III (15% impairment of the neck) is made where there are two or more out of five signs of radiculopathy listed in cl 6.138.
While a DRE category II impairment can be found on the basis of subjective complaints, a DRE category III must be found on the basis of clinical findings evidencing signs of radiculopathy. Clause 6.140 of the Guidelines distinguishes between non-verifiable radicular complaints as opposed to complaints verified by neurological findings.
The threshold injury provisions in the Guidelines adopt the same testing for the five clinical signs of radiculopathy found in cl 6.138. The Guidelines therefore appear to acknowledge the objectivity of the testing for the five signs of radiculopathy.
Should additional tests be required?
The Panel notes that in the assessment of permanent impairment additional investigations are considered “not appropriate”.[32]
[32] Clause 6.43.
Clause 5.4 says that insurers (and Medical Assessors or Panels) should not require claimants to have diagnostic imaging for the purpose of determining threshold injury. Diagnostic imaging can expose a claimant to radiation (albeit very mild) which might form the reasoning for the clause. Clause 5.4 and the remaining clauses in Chapter 5 are silent as to other forms of testing such as the three tests suggested by the insurer.
In assessing spinal impairment, the Panel notes cl 6.142 provides that:
“Electrodiagnostic tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds. The diagnosis of radiculopathy should not be made solely from electrodiagnostic tests.”
Nerve conduction studies measure the speed electrical impulses move through nerves. A nerve is stimulated by an electrode placed on the skin over the nerve and another electrode is placed over the muscle innervated by the nerve. While the forces involved are low, nerve conduction studies provoke discomfort and can cause pain. The Panel is of the view that it is not appropriate for this sort of test to be administered particularly in a compensation assessment or dispute resolution setting.
During EMG testing, a small needle with an electrode is inserted into the muscle. Pain can occur and the tested muscles may be sore for a few days after the test (which can take up to an hour). The Panel is of the view that this is also not appropriate for this type of invasive test to be administered in order to resolve this dispute.
In lower limb impairment assessment, cl 6.83 of the Guidelines provides that electrodiagnostic methods and tests are not to be considered when testing muscles and manual testing is to be performed. Section 3.2d (page 76 of AMA 4 Guides) acknowledges the shortcomings of manual testing.
Dynamometers are not, in the clinical judgment of the Medical Assessors an objective measure of strength evaluation and therefore possibly relevant to a loss of power. The
AMA 4 Guides at page 64 (in respect of upper limb impairment) note that strength measurement can be influenced by subjective factors (for example effort) and the Guides “[do] not assign a large role to such measurements.” Clause 6.67 of the Guidelines state that “strength evaluations … are unreliable indicators of impairment.
What testing was done by the Medical Assessors?
In terms of the five signs of radiculopathy specified by the Guidelines, the Panel makes the following comments in response to the insurer’s submissions:
(a) loss or asymmetry of reflexes – reflexes cannot be falsified. They are an involuntary or automatic action from the body when responding to a stimulus;
(b) positive sciatic nerve root tension signs – these too cannot be falsified and in the case of Dr Mooney they were negative in any event;
(c) muscle atrophy and clinically significant decreased limb circumference – cannot be falsified as these are measurements taken of parts of the injured person’s anatomy. Table 6.8 says that in the upper limb a difference of 1 cm or more is clinically significant. In Dr Mooney’s case the difference was 1 cm. While he pursues gym training and the development of muscles on both sides of his body, this difference could be explained by either his right handedness or ongoing weakness caused by nerve root impingement;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – manual strength testing is, in the clinical experience of the Panel more nuanced and preferred and in any event there was no loss of strength in Dr Mooney’s case requiring further testing, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution – this testing was undertaken with the claimant’s eyes closed. This test is designed to determine both the actual ability to feel a pin prick and the ability to determine the difference between a sharp (pin prick) sensation and a dull sensation (in this case a tissue)
While the MAI Act and the Guidelines do not mandate that both Medical Assessors need to be present for a re-examination, both Medical Assessors Couch and Kenna were present at Dr Mooney’s re-examination.
The Panel is satisfied that the testing undertaken was objective and the results can be used for the assessment of the presence of radiculopathy and the determination of threshold injury.
Does the claimant have a non-threshold injury?
As the Panel is satisfied as to the validity of the clinical findings recorded by Associate Professor Steel in December 2022 and Medical Assessor Home in May 2024, the Panel is satisfied that Dr Mooney sustained an injury to the C5/6 nerve in the accident which has, at the time of those examinations manifested in radiculopathy. This is a non-threshold injury.
On the basis of the examination findings of Medical Assessors Couch and Kenna, the Panel is satisfied that Dr Mooney sustained an injury to the C5/6 nerve in the accident which has manifested in radiculopathy. This is a non-threshold injury.
Finally, the Panel notes the March 2022 MRI scan reported the presence of a C5/6 disc protrusion which Associate Professor Steel considered was acute. As there is no record of the claimant having any pre-accident neck or neck related symptoms, and based on
Dr Mooney’s history at the re-examination which is consistent with that, the Panel accepts that the claimant sustained an injury to his C5/6 disc in the accident.The Panel notes that the claimant’s post-accident radiology was interpreted by Associate Professor Steel as including a C5/6 a disc prolapse and by Dr Kober as a disc protrusion. An intervertebral disc is made up of two parts, the annulus fibrosis, a tough outer fibrous ring and the nucleus pulposis, the soft gelatinous interior. For there to be a prolapse or protrusion of the disc requires there to be a partial tear of the annulus fibrosus of the C5/6 disc. This is, in the Panel’s view, the “partial rupture of tendons, ligaments, menisci or cartilage” and therefore a non-threshold injury within the meaning of s 1.6(2) of the Act.
CONCLUSION
The Panel is satisfied that the claimant has an injury which is not a threshold injury to his cervical spine.
As the Panel has come to the same conclusion as Medical Assessor Home, it follows that his certificate must be confirmed.
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