AAI Limited t/as GIO v Alshenawa
[2022] NSWPICMP 296
•20 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Alshenawa [2022] NSWPICMP 296 |
| CLAIMANT: | Hussein Alshenawa |
INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL: | Member Belinda Cassidy Medical Assessor David McGrath Medical Assessor Shane Maloney |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); medical assessment of minor injury and claimant’s review under section 7.26 of the MAI Act; intersection collision, claimant says he sustained neck and lower back injuries, left and right shoulder injuries; radiology indicated multi-level disc bulges in cervical and lumbar spine; Held – all injuries minor injuries; no apparent issue with assessment of shoulder injuries being minor injury; lower back injury was aggravation of pre-existing lower back condition sustained overseas in a work accident and investigated four years before accident, no radiculopathy present and no disc bulge caused by accident; neck injury, soft tissue injury, no evidence of two of the five signs of radiculopathy at any stage since the accident, disc bulge and annular tear not caused by accident. |
| DETERMINATIONS MADE: | The Review Panel: 1. Revokes the certificate of Assessor Oates dated 11 May 2021. 2. Certifies Hussein Alshenawa’s only injuries resulting from the motor accident were minor injuries for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 29 January 2020, Hussein Alshenawa was driving his car with right of way along Dellwood Road in South Granville when another vehicle came through a give way or stop sign at a cross street and the two vehicles collided.
Mr Alshenawa says he was injured in the accident and on or about 4 February 2020, he made a claim for personal injury benefits on the GIO, the third-party insurer of the vehicle that caused the rear-end collision[1].
[1] The application for personal injury benefits (claim form) is document A5 at page 25 of the insurer’s bundle.
GIO accepted liability for the claim and began paying Mr Alshenawa his statutory benefits. However, on 11 April 2020, GIO wrote to Mr Alshenawa advising him that GIO denied liability to pay him benefits beyond the first 26 weeks after the accident. While GIO accepted Mr Alshenawa did not cause or contribute to the accident, GIO terminated Mr Alshenawa’s benefits on the basis the injuries he sustained in the accident were minor injuries[2].
[2] The insurer’s liability notice is identified as document A8 at page 36 of the insurer’s bundle.
After seeking an internal review from GIO, on 12 June 2020 GIO issued a Certificate of Determination and statement of reasons affirming its original decision.[3] The claimant was dissatisfied with that result and lodged an application for assessment of a medical dispute with the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority. Due to the abolition of DRS, the resolution of the dispute became a matter for the Personal Injury Commission (the Commission) to determine.
[3] A4 page 16 of the insurer’s bundle.
The dispute was referred to Assessor Oates who, on 11 May 2021 issued a certificate with reasons finding that the claimant’s injuries sustained in the accident were not minor injuries.
The insurer was dissatisfied with that result and lodged an application for review of that decision with the Commission. On 21 October 2021, the President’s delegate determined there was reasonable cause to suspect an error in the assessment and allowed the Review. The President then convened this Panel.
LEGISLATIVE FRAMEWORK AND CASE LAW
Legislative provisions
The claimant’s accident and claims arising from that accident are governed by the Motor Accident Injuries Act 2017 (the MAI Act). Under that Act, the claimant is entitled to make two claims:
(a) a claim for statutory benefits (comprising weekly income support and treatment expenses) under Part 3 of the Act, and
(b) a claim for damages (non-economic loss and limited economic losses) under Part 4 of the Act.
Statutory benefits are available to claimants regardless of fault and even if the claimant is at fault[4] but there is no entitlement to benefits beyond the first 26 weeks after the accident if the claimant is wholly or mostly at fault or if the claimant’s only injuries are minor injuries[5].
[4] Section 3.1 of the MAI Act.
[5] Sections 3.11(1) with regards to income support benefits and 3.28(1) in relation to treatment and care benefits.
The claimant can make a claim for damages but cannot recover damages if he has sustained only minor injuries[6].
[6] Section 4.4 of the MAI Act.
The issue before the Panel is whether or not the claimant’s only injuries sustained in the accident are, or are not, minor injuries. This is an important decision because the claimant’s rights to ongoing statutory benefits and to the recovery of damages depends upon it.
Minor injury provisions
Section 1.6(1) of the MAI Act defines a “minor injury” as:
(a) a soft tissue injury, or
(b) a minor psychological or psychiatric injury.
Section 1.6(2) further provides that a soft tissue injury is:
“… an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6(4) provides that the Motor Accident Injuries Regulation 2020 (the Regulation) may prescribe include or exclude certain injuries from the definition of minor injury and s 1.6(5) the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a minor injury.
Clause 4(1) of the MAI Regulation provides that:
“An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
If Mr Alshenawa has radiculopathy, then he would have a non-minor injury. Clause 5.8 of the Guidelines provides a definition of radiculopathy as follows:
“… the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Case law
In David v Allianz Australia Insurance Ltd[7] a Medical Review Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury”. At [98] the panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.”
[7] 2021 NSWPICMP 227 (David).
The Panel found at [104] that if it is established (following an assessment that complies with cl 5.5 of the MA Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time, the injured person falls outside the definition of ‘minor injury’.
In Lynch v AAI Limited t/as AAMI[8] a Medical Review Panel considered the same issue in respect of a psychiatric injury. At [68]-[69] the Panel concluded that Ms Lynch suffered from a “Specific Phobia of Driving” which was a non-minor injury as well as a major depressive disorder now in remission, but which was diagnosed in 2020. This was also considered to be a non-minor injury. After citing David, and considering cls 5.10-5.11 of the MA Guidelines where the word “present” is required for a psychiatric injury, the panel said at [72]:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
[8] 2022 NSWPICMP 6.
In summary the two cases above have found that the issue of minor versus non-minor injury is assessed by the Panel but if, at any time the claimant’s accident-related injury falls outside the definition of “minor injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.
ASSESSMENT UNDER REVIEW
Assessor Oates issued a certificate stating that the claimant’s lumbar and cervical spine injuries were not minor injuries for the purposes of the MAI Act. Assessor Oates had been referred injuries to the cervical and lumbar spine as well as injuries to the left and right shoulder.
The claimant gave a history to Assessor Oates of a 2012 lower back injury in Iraq following a lifting injury. Mr Alshenawa reported that he was told he had three slipped discs but he said he had no leg pain. The claimant had not worked since emigrating to Australia in 2013 although he had found a job in a supermarket a week before the accident but could not start the job because of his injuries.
The claimant described the accident and said he “blacked out” after impact. Although his airbags did not deploy, his car was not driveable after the accident and was written off. Assessor Oates records that police and ambulance arrived at the scene and while he was seen by ambulance officers, he said he was not injured and was therefore not taken to hospital. He said his wife came to the accident scene and drove him home.
The claimant said he developed pain in the back of the neck with headache and dizziness and he went to see his doctor the next day. He had a CT scan of his brain and lower back as the claimant complained of pain radiating from the back to his legs.
The claimant had physiotherapy which Mr Alshenawa said made things worse, was referred to Dr Darwish neurosurgeon and medication was prescribed. The claimant reported “no subsequent accident or injury or condition developing”.
The claimant complained of neck pain every day radiating to both shoulders into the upper arms, the ulnar aspect of the forearms and the fingers with numbness in both hands. The claimant also complained of low back pain radiating to both of his legs to the ankles and with numbness in both feet. This neck and back pain was said to wake him at night.
Assessor Oates examined the claimant and reviewed the radiology including MRIs of the neck and lower back.
On the basis of contemporaneous complaints of neck and back pain and an attendance on a doctor the day after the accident, Assessor Oates found the claimant sustained injuries to his cervical and lumbar spine and that they were caused by the accident.
Assessor Oates found no evidence of direct injuries to the claimant’s shoulders rather that there were radicular symptoms in the shoulders from the cervical spine injury.
Assessor Oates diagnosed a soft tissue injury to the neck including a right paracentral annulus tear and focal disc protrusion and in the lumbar spine an aggravation of pre-existing discogenic lumbar spine condition.
In terms of the cervical spine injury, Assessor Oates found no pre-existing degenerative changes on the MRI and said:
“… the timeline of early symptoms following the motor accident correlates with a traumatic aetiology for the findings in the C6/7 disc, rather than the progression of degenerative change”.
He considered Mr Alshenawa’s neck injury was not a minor injury because the injury was an annular tear and focal disc protrusion.
In terms of the lumbar spine, he accepted a lumbar spine injury occurred but that the focal disc protrusion and annular tear appeared to be traumatic and were not “typical of degenerative changes”. He based that finding on there being no evidence of previous radiating symptoms into the legs. Again, on the basis that the injury to the discs involved annular tears and a disc protrusion at L4/5 and L5/S1 he found these were non-minor injuries.
REVIEW OF THE EVIDENCE
The claim form is dated less than a week after the accident and reveals that Mr Alshenawa is now 41 years of age. Mr Alshenawa discloses a lower back injury in 2013, no employment at the time of the accident (unemployed and in receipt of benefits) and the following injuries:
(a) neck and headaches;
(b) left / right shoulder pain;
(c) left / right elbow down to fingers go numb and pain;
(d) left leg numb knee down to foot and pain, and
(e) lower back.
The certificate of capacity / certificate of fitness attached to the claim form[9] diagnoses:
(a) multi-level cervical disc bulge with radiculopathy, and
(b) aggravation of pre-existing discogenic lower back pain.
[9] Signed by Dr Al-Taiff is document A6 at page 29 of the insurer’s bundle.
Dr Al-Taiff, the claimant’s general practitioner (GP) noted pre-existing low back pain, stated that his management plan was “analgesia” and said the claimant needed to be referred to a neurosurgeon.
Three photographs have been provided one[10] showing a Toyota motor car (the claimant’s Tarago) with significant denting damage to the bumper bar and bonnet on the left-hand side of the number plate. The second photograph[11] shows a man taking a photograph with the two cars. The vehicles are close together suggesting an impact between the front passenger side of the claimant’s Toyota and the rear passenger side of the other (darker) car. A third photograph shows a front-on shot of the claimant’s vehicle with significant damage to the front of that vehicle. The claimant’s bundle also includes a deposit slip for the sum of over $8,000 which is said to be the payout figure for the claimant’s van which was written off.
[10] Pages 33 and 59 of the insurer’s bundle.
[11] Page 24 of the insurer’s bundle.
A copy of the police report has been provided[12] this suggests:
(a) both vehicles were towed from the scene;
(b) the police did not attend the scene, but the accident was reported on 1 February 2020 due to suspected injuries to discs in the claimant’s neck;
(c) the claimant was travelling at 50 km/h and the insured driver at 20 km/h, and
(d) no one was treated at the scene, and the claimant went to his doctor the next day with neck pain.
[12] Document A9 page 40 of the insurer’s bundle.
There is no ambulance report or records before the Panel.
On 27 March 2020, the claimant had an MRI of his brain, neck and back with the clinical indication for the scans said to be “Neck pain radiating to both upper limbs, lower back pain, right sciatica”. The results[13] were:
(a) Brain – normal but showing an unrelated paranasal sinus disease.
(b) Neck – disc dehydration in upper five cervical levels, mild disco-vertebral changes with a right paracentral C6-7 annulus tear and disc protrusion with mild flattening of the right hemicord. No cause for radiculopathy.
(c) Lower back – bilateral L5 pars defects with a grade 1 spondylolisthesis. There is a right L5 root impingement. Annulus tears and disc bulges at the L3-4 and L4-5 without significant neural impingement.
[13] Page 52 of the insurer’s bundle.
Also provided is an allied health request and GP management plan dated 22 June 2020[14] for physiotherapy for chronic cervical spine pain and C6/7 disc protrusion.
[14] Pages 57 and 58 of the insurer’s bundle.
The records from Dr Abbas Al-Taiff commence with a transfer of records form from the Essential Care Family Medical Centre to “Dr Abbas” dated 27 April 2021. The relevant records include[15]:
(a) 17 April 2015 – CT scan of the lumbar spine with a history of “Left sided sciatic pain”. There is a corresponding note of this date in the hand-written records which reads “low back pain with radiculopathy past history of disc bulges”. There appear to be follow ups on 24 April, 6 June, 7 August, 17 September, 31 October (“need to have steroid injection back”) and December 2015, November 2016, 11 February 2017 (chronic low back pain).
(b) Dr Darwish reports 12 October 2015 (two reports), 19 March 2020, 17 April 2020 and referral dated 19 March 2020.
(c) MRI dated 14 October 2015 with clinical indication of “lower back pain radiating to both legs. Right greater than left”. The results were grade 1 spondylolisthesis at L5/S1 with desiccated discs at L3/4, L4/5 and L5/S1.
(d) Visual problems and nasal problems in 2017 and 2018.
(e) 30 January 2020 – motor vehicle accident, neck pain and dizzy.
(f) CT scan 4 February 2020 lumbar spine with clinical history of “dizziness and lower limb radiculopathy” and CT scan of the head with the same date and a history of “motor vehicle accident. Dizziness”.
(g) 15 January 2021 – mental health treatment plan for chronic depression, disturbed sleep, nightmares, social isolation, easily agitated with a note of neck and low back pain.
[15] The documents from Dr Al-Taiff include documents not relating to the claimant in particular two hospital discharge summaries, one relevant to the claimant’s son and another to a completely difference individual in respect of a fractured shoulder.
Dr Darwish records include his reports as follows:
(a) First letter to Dr Al-Taiff noted a complaint of lower back pain radiating to the lower limbs intermittently for three years. The pain was said to be worse on the right side with no sensory or motor symptoms. Dr Darwish had the CT scan but wanted an MRI and prescribed Lyrica.
(b) Second letter to Dr Al-Taiff after a further consultation on 22 October 2015 noted continuing complaints of radiating lower back pain. “He has a disc protrusion at L4/5 and annular tear”. Mr Alshenawa was advised about treatment including surgery but said symptoms were not severe enough at this stage and advised an exercise program (swimming and cycling). There was to be a review in six months but there is no further report from 2015 or 2016.
(c) A letter to Dr Al-Taiff dated 19 March 2020 records headaches, neck pain radiating to both upper limbs and lower back pain radiating to the lower limbs. The claimant is reported to have had physiotherapy with improvement. The Panel notes the claimant told Assessor Oates physiotherapy provided no improvement. Again, Dr Darwish requested MRIs and a further review.
(d) A letter to Dr Al-Taiiff dated 17 April 2020 notes continuing pain in the neck and lower back with paraesthesia in the right leg. An MRI showed a disc protrusion but no compression. He recommended no surgery but physiotherapy and a right L5/S1 injection and further review in two months.
(e) There is a letter dated 5 July 2021 to the claimant’s new GP, Dr Almansur. The claimant was complaining of neck pain radiating into the upper limbs which was worse on the right with increasing severity. There was also lower back pain radiating to both lower limbs. The claimant was said to be taking Lyrica for pain twice a day. Mobic and Endep prescriptions were given.
(f) A further letter dated 2 August 2021 notes neck pain and stiffness, lower back pain with radiation and advises no surgery but recommends physiotherapy to the neck and cortisone injection to the lower back.
(g) A final letter is dated 19 October 2021. Dr Darwish notes that the cortisone injection resulted in “significant improvement in his back and leg symptoms”. Mr Alshenawa was again advised to have physiotherapy and exercise and was prescribed Mobic and Panadeine Forte.
PROCEDURAL MATTERS AND SUBMISSIONS
Insurer’s submissions
The insurer’s original submissions only took issue with the lumbar spine finding, however revised submissions raised issues with both the lumbar spine and the cervical spine injury.
The revised submissions[16] take issue with the Assessor’s reasons and say he failed to explain why he was of the view the lumbar spine and cervical spine injuries were not minor injuries.
[16] AD8 in the Commission’s electronic file dated 11 February 2022.
After setting out the compliance with time limits and detailing the legislative framework, GIO says:
(a) The diagnosis was an aggravation, the clinical examination revealed radicular signs but no radiculopathy.
(b) The assessor did not state which particular injury was ‘not a minor injury’.
(c) Having reviewed the MRI and based on his examination he did not explain how the annular tears had been caused or aggravated in the accident.
(d) There were widespread degenerative finding on the imaging and a history of “slipped discs in the lumbar spine” suggesting the annular tears were caused by a previous injury.
(e) As a restrained driver it was unlikely the lower back region would have been exposed to sufficient force to cause the tears.
In terms of the cervical spine, GIO submits that the Assessor has said there were no pre-existing degenerative changes according to the MRI scan however says that there are degenerative changes to all levels above C6/7 and the assessor has not explained why C6/7 is “not part of the degenerative spectrum”.
Claimant’s submissions
The claimant’s submissions to the “Proper Officer” in respect of the review set out a brief chronology leading up to the application for internal review.
The claimant then repeated the submissions that he relied on the MRI of the cervical and lumbar spine, that the claimant had been referred to a neurosurgeon after the accident and that the insurer should request a report from that neurosurgeon and that this report might indicate whether the claimant required surgery.
The claimant noted that the MRI was considered in the course of the internal review by someone without medical qualifications and that there was no radiculopathy despite the claimant’s GP certifying that the claimant had radiculopathy. The claimant also argued that the internal reviewer, “without qualifications as an orthopaedic specialist or a neurosurgeon” made a decision about “annular fissures / tears” without evidence.
The claimant’s submissions then argue again that at no time in between the application for internal review or the examination by Assessor Oates did the insurer request the notes of the general practitioner or Dr Darwish “and made a conscious decision to ignore the submissions of the claimant”.
The claimant complains that the insurer now takes issue with the Assessor’s determination that there is no evidence to suggest a past history of lumbar spine problems and says that the Assessor came to a reasoned view based on the review of the documents put before him and the history taken from and examination of the claimant in accordance with cl 5.7 of the Guidelines.
The claimant provided a copy of Case Study no 48 Review Panel decision[17]. This was a matter involving allegations of cervical spine, lumbar spine and shoulder injuries. A review panel determined that the claimant’s L4-5 disc lesion was caused by the accident and was a non-minor injury because the disc lesion consisted of a partial rupture of fibrocartilage.
[17] Page 23 of the claimant’s bundle. Before the commencement of the Commission, the former dispute resolution services of the State Insurance Regulatory Authority (SIRA) (and its predecessors) were not able to be published. Case studies with limited details were published the SIRA website.
Procedural matters
On 3 February 2022 the Panel issued to the parties, a report about the Panel’s first meeting and gave directions to the parties.
The Panel noted that the insurer’s submissions in support of the application for review raised issues only with the assessment of the lower back as a non-minor injury and did not raise any issues with the assessment of the neck as non-minor or the shoulders. The Panel queried whether in the light of an uncontested finding of one injury as non-minor there was any utility in proceeding with the current application. The Panel invited the insurer to provide further submissions about the claimant’s neck injury which it did and which have been included above.
The Panel informed the parties it would proceed on the basis that the claimant’s shoulders (determined by Assessor Oates as minor injuries) were not to be considered further.
The Panel informed the parties it would be assisted by records from the claimant’s pre-accident GP and his neurosurgeon.
On 9 February 2022 the insurer provided records from Dr Darwish[18] and on 29 April 2022 copies of Dr Al-Taiff’s records were provided also by the insurer[19].
[18] AD7 in the Commission’s electronic file.
[19] AD10 in the Commission’s electronic file.
Following receipt of the above documents the Panel determined that a re-examination of the claimant was required.
It should be noted that the claimant in his submissions at [18] suggested that the claimant should be referred to a Medical Assessor “specialising in diagnostic radiology” to comment upon the significance of findings in Mr Alshenawa’s scans. The Panel understands the Commission did not see fit to do this and the medical members of the Panel note that the review and interpretation of radiology is within their expertise.
EXAMINATION FINDINGS
Mr Alshenawa attended the rooms of Assessor McGrath on 7 July 2022 and was interviewed and examined by Assessors McGrath and Moloney in the presence of an interpreter. The interpreter remained in attendance throughout the interview and examination.
Pre-accident history
Mr Alshenawa said that he migrated from Iraq in 2013 and lives with his wife and four children (aged 15, 14, 9 and 6). There was a previous history (in 2012) of an injury to the lumbar spine in Iraq following which he was told he had three slipped discs. He stated that he stopped work after this injury and has not returned to work since due to his low back pain. He had been on Centrelink payments since arriving in Australia, however those payments were ceased over one and a half years ago when he was instructed to seek employment. He states that due to the low back pain he has been unable to work and has not applied for any employment positions. He further explained that his wife cares for both him and the children and they live on family benefits.
Before the accident he said he was under the care of his GP Dr Abbas[20] and a neurosurgeon Dr Darwish. Mr Alshenawa states that he was treated by Dr Darwish with one injection into the lumbar spine region before the accident which gave initial benefit.
[20] The Panel notes the full name of the claimant’s GP is Dr Abbas Al-Taiff.
History of motor vehicle accident and subsequent treatment
Mr Alshenawa states that he was the driver of his Toyota Tarago van and said he was hit from the driver’s side. The Panel’s inspection of the photographs suggest the collision was actually between the front of Mr Alshenawa’s to the left (or passenger side) with the rear passenger side of a car that failed to give way at a stop sign. This was put to Mr Alshenawa, and he made no comment.
Mr Alshenawa says that the car was towed away and was declared a write-off. He was wearing a seatbelt at the time and said the airbags were not deployed.
The police and ambulance attended the scene, but Mr Alshenawa said no treatment was provided to him. He said that his wife was at home which was near the accident and he walked home, unaware he had sustained any injury.
Mr Alshenawa said he felt very dizzy and over the next night developed a headache neck pain and low back pain radiating to the legs. He consulted his GP who referred him for physiotherapy and then to Dr Darwish due to ongoing neck and low back pain. He states that Dr Darwish had organised two injections of cortisone into the lumbar spine region which gave him relief for a few months. The last injection was about one year ago. In the past year, he has changed GP to Dr Almansur and restarted physiotherapy which was of some benefit. The last physiotherapy treatment was six weeks ago and was paid for by the insurer.
Mr Alshenawa states that there had been no further injuries or accidents since the initial motor vehicle accident.
Current symptoms
Mr Alshenawa told the medical members of the Panel that he has constant pain in his neck which radiates into his arms and in particular his fingers. He states there is a fluctuating numbness in the fingertips which increases at nighttime.
Mr Alshenawa also complained of central lower back pain which he indicated radiates more to the right than the left but is associated with pain in the front of both thighs and occasionally down the front of the legs to the toes with some lateral referral of pain as well. He says that he gets pain in the left heel and sole of his left foot. The right foot has pain mainly with a dorsal distribution. This pain is all associated with numbness radiating down both legs and in particular to all of his toes both left and right.
Mr Alshenawa states that he has no trouble walking but gets low back pain if he sits or stands for more than one hour. He said he is able to drive short distances which involves driving his children to school and collecting them afterwards. He feels that the pain has worsened in the last year.
Present treatment
Mr Alshenawa says he takes Celebrex (200 mg) at night, Lyzalon (150 mg) at night and occasional Panadol. He also states that he does home stretches as directed by the physiotherapist.
He has made a follow-up appointment with Dr Darwish on 9 August 2022 and sees his GP on a regular basis.
Examination findings
Mr Alshenawa walked into the rooms with a normal gait, carrying his imaging scans and studies.
He related his history through the interpreter and said he is right-handed.
Cervical spine
On inspection of the cervical spine there was a normal contour. On testing range of movement, both medical members of the Panel noted a full range of flexion/extension, side bending and rotation. On palpation there was no guarding visible of the cervical musculature. There was generalised tenderness over the lower cervical spine and upper thoracic spines with no particular focal point corresponding to the C6-7 level.
On neurological examination of the upper limbs, the medical members of the Panel observed that all of Mr Alshenawa’s reflexes were equal on both sides with normal power. There were no sensory changes in the forearms or upper arms except for decreased sensation over all the digits of both hands. No muscle wasting was evident to the Panel with upper and lower arm circumference was measured at 41cms and 36 cms respectively for both left and right limbs.
Lumbar spine
Mr Alshenawa walked into the examination with a normal gait. Mr Alshenawa was unable to walk on his heels and toes because he complained of back pain but was able to stand on his heels and toes without difficulty which suggests no motor impairment to power and strength. Mr Alshenawa was able to squat but only to 50% percent of the expected range due to complaints of low back pain.
On testing range of movement, the medical members of the Panel noted there was a full range of flexion/extension, side bending and rotation. On palpation of the lumbar spine region there was no guarding was apparent but some tenderness over the right sacroiliac joint and lower lumbar spines. Straight leg raise, when lying was 80° bilaterally and sciatic nerve root tension signs were negative.
On neurological examination of the lower limbs, all of Mr Alshenawa’s reflexes were brisk and equal on both sides with normal power and no sensory changes were noted except for decreased subjective sensation in all of his toes on both feet. No muscle wasting was observed in the lower limbs with upper and lower leg circumference was measured as 85cm and 53cm for both left and right limbs.
Shoulders
On inspection of the claimant’s shoulders there was no wasting was apparent and on passive movement no crepitus was detected with negative impingement tests. On testing range of movement there was a full pain free range of movement of both shoulders.
CONCLUSIONS
Has the claimant sustained an injury to his shoulders that is not a minor injury?
There is no evidence before the Panel that as a result of his motor vehicle accident Mr Alshenawa sustained any fractures to his shoulder. There is no radiology suggesting any other shoulder joint abnormality.
Dr Al-Taiff’s medical certificate attached to the claim form dated 4 February 2020 does not mention any shoulder injury. While Dr Al-Taiff’s handwritten notes are difficult to decipher it appears the first mention of shoulder pain occurs in September 2020.
The Panel notes the claimant has provided no submissions in response to the Panel’s preliminary views that the shoulder injuries would not be considered further.
The Panel notes that the claimant demonstrated full movement of both shoulders at the examination.
Taking all of the above into account, the Panel finds that any injury to the claimant’s left or right shoulder sustained in the accident are minor injuries.
Has the claimant sustained an injury to his lower back that is not a minor injury?
The claimant’s original submissions take issue with the insurer’s internal review and complain about the insurer’s failure to request treatment records. The claimant’s submissions to the Commission do not engage with the issue of causation of the claimant’s lower back injury in the light of his conceded previous history.
The claimant told Assessor Oates he injured his back in 2012 in Iraq and had lower back pain but “no leg pain at any time in association with this injury”. This is not borne out by the two 2015 reports of Dr Darwish which refer to pain radiating into the lower limbs as do the GP’s notes.
The Panel has received no further submissions from the claimant at any time, and in particular no submissions following the provision of the records of Drs Darwish and Al-Taiff.
Lumbar spine disc protrusion and annular tear
The Panel notes the report of Dr Darwish dated 12 October 2015 in which he notes there was a grade 1, L5/S1 spondylolisthesis with bilateral L5/S1 foraminal stenosis more on the right side with potential compression of the right L5 nerve root. Dr Darwish also noted at that time there was a disc protrusion at L 4/5 and an annular tear. At that stage he organised a L5/S1 right epidural cortisone injection and the option of laminectomy discectomy and fusion was discussed.
The Panel has reviewed the imaging studies, the handwritten notes of Dr Al-Taiff and the documents from Dr Darwish in particular and the Panel considers that there has been no change to the condition of Mr Alshenawa’s lumbar spine since the accident.
The Panel is not satisfied that any disc protrusion or annular tear evident on the post-accident X-rays was caused by the accident and there is no evidence that any protrusion or tear has been worsened by the accident.
Lumbar spine radiculopathy
A finding of lumbar radiculopathy would require the presence of two or more of the following signs (see paragraph 15 above):
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tensions signs;
(c) muscle atrophy and /or decreased limb circumference;
(d) muscle weakness anatomically localised to appropriate nerve root, and distribution, and
(e) reproducible sensory loss anatomically localised to an appropriate nerve root distribution.
The examination findings recorded above revealed:
(a) no loss or asymmetry of Mr Alshenawa’s reflexes – all reflexes were brisk and equal;
(b) no positive nerve root tension signs – sciatic nerve root tension signs were negative;
(c) no muscle atrophy or decreased limb circumference – upper and lower leg circumference was equal and there was no evidence of muscle wasting;
(d) no muscle weakness - there was normal power in both lower limbs, and
(e) while there was decreased sensation in all of the claimant’s toes, there were no sensory changes evident on examination elsewhere in the lower limbs. The reduction in sensation in the toes on its own does not correspond to a nerve root distribution, the medical members of the Panel would expect there to be sensory changes further up the legs.
The examination findings of the Panel confirmed one possible sign of radiculopathy (reproducible sensory loss) it did not correspond to a nerve root distribution. The Panel is not therefore satisfied that the claimant was, at the time of its examination, experiencing radiculopathy.
Whether the claimant has been experiencing radiculopathy, within the meaning of the definition at any other time after the motor accident, the Panel notes the GP’s records and the records of Dr Darwish in particular his letters of 19 March and 17 April 2020. In the first of those letters, Dr Darwish had a record of complaints of pain radiating to both limbs, in the second letter it was into the right leg only. In the first letter there is a reference to “normal muscular power and sensation in all limbs”.
There is therefore nothing in the reports of Dr Darwish to confirm the presence of any or at least two of the signs of radiculopathy necessary for the claimant’s lumbar spine injury to fall outside the definition of minor injury in s 1.6.
The claimant may have pain in his lumbar spine radiating to his legs including increased pain since the date of the motor accident, but the Panel is not satisfied that this injury is anything other than a soft tissue injury.
Has the claimant sustained an injury to his neck that is not a minor injury?
Cervical spine radiculopathy
The claimant’s submissions in answer to the insurer’s application for review do not address the claimant’s neck injury. The claimant has not lodged, or sought to lodge, further submissions which engage with the insurer’s revised submissions.
A finding of cervical radiculopathy would require the presence of two or more of the following signs (see paragraph 15 above):
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tensions signs;
(c) muscle atrophy and /or decreased limb circumference;
(d) muscle weakness anatomically localised to appropriate nerve root, and distribution, and
(e) reproducible sensory loss anatomically localised to an appropriate nerve root distribution.
The examination findings recorded above revealed:
(a) no loss of, or asymmetry of reflexes – all reflexes were present and equal on both sides;
(b) sciatic nerve root tension signs are required for lumbar radiculopathy but not for cervical radiculopathy. There is no equivalent test in the cervical spine area. The medical members of the Panel note their examination did not indicate there was any impairment of the brachial plexus or more discrete nerve branches such as the radial, median or ulnar nerves.no muscle atrophy and / or decreased limb circumference – there was no visible evidence of muscle wasting in either limb and forearm and upper arm circumferences were equal;
(c) there was no muscle weakness – there was normal power in both left and right lower limb, and
(d) on testing, there was reproducible sensory loss over all digits of both hands but this is not anatomically localised to an appropriate nerve root distribution such as C6/7.
The examination findings of the Panel confirmed one possible sign of radiculopathy (sensory loss) but this was based on the subjective complaints of the claimant and did not correspond to a nerve root or peripheral nerve distribution. For the claimant to have a loss of sensation over all digits of both hands he would have to have nerve root compression at C5, 6 and 7 as well as a loss of sensation over much of the upper arm. While the claimant complained of pain in the neck radiating down the arms to the hands and fingers, on two point testing the medical members of the Panel could not establish a loss of sensation in the arms or hand. The Panel is not therefore satisfied that the claimant was, at the time of its examination, experiencing radiculopathy.
The Panel notes the certificate of capacity signed by Dr Al-Taiff indicates the presence of cervical radiculopathy however there is nothing in his notes to suggest which of the five signs of radiculopathy were present and if so which two of those five signs were present in order to fulfill the definition from the Guidelines. The medical members of the Panel observe that radiculopathy can be used by medical and allied health practitioners in a more general sense, as any symptom experienced in the limbs, including pain, originating from more central structures.
The Panel has also carefully examined the reports and records of Dr Darwish and there is no indication in those records of any of the five signs of radiculopathy being present at any time since the accident.
There is therefore nothing in the material currently before the Panel to confirm the presence of radiculopathy within the meaning of that term in the Guidelines.
Cervical spine disc bulge and annular tear
The claimant’s original submissions which were before Assessor Oates refer at [5]-[6] to the 27 March 2020 MRI of the claimant’s neck which identified a tear and disc protrusion at the C6-7 level of the claimant’s cervical spine. The submissions go on to say:
“[15] It is noted that the discs in the spine consist of a soft gelatinous fluid on the inside of each disc known as the nucleus. There is an outer half of the disc which is composed of tough connective fibres or ligaments which is called the annulus fibrosis. If the tough external surface of the disc is torn, this is commonly known as an annular tear.
[16] It is further submitted that an annular tear occurs in case of a trauma such as motor vehicle accident causing a rupture of the disc and tear of the ligament.”
The insurer does not dispute the presence of a disc bulge and annular tear at C6/7 however the insurer did dispute whether that bulge and tear was caused by the accident. The insurer says that in the light of degenerative age-related changes in other parts of the claimant’s cervical spine Assessor Oates should have explained why he was of the view the bulge and tear were accident related.
The Panel notes a hospital discharge summary dated 8 October 2017[21] when the claimant attended with fever and headache. In the past history section, the attending doctor had recorded a past history of cervical radiculopathy involving three discs.
[21] Page 52 of the GP’s bundle of records being AD10 in the Commission’s electronic file.
The Panel notes that the claimant has only ever had one disc bulge (not three) diagnosed from Australian radiology but that he gave to Assessor Oates and the Panel a consistent history of three lumbar disc bulges sustained in an injury in Iraq. The Panel is not therefore satisfied as to the accuracy of the hospital note of 8 October 2017 noting also that there is a suggestion a translation was facilitated by a medical student and not an accredited interpreter.
Dr Darwish did not, in 2015, record any complaints of neck pain. While the handwritten notes of Dr Al-Taiff are not clear, the Panel’s examination of these documents does not reveal any obvious pre-accident cervical or neck symptoms.
The claimant has consistently complained of neck pain since the date of the accident, has been referred for physiotherapy and neurological investigation of it.
The medical members of the Panel have reviewed the radiological reports. The Panel notes the two MRI reports in respect of the claimant’s cervical spine have revealed “no cause” for the “radiculopathy” complained of by the claimant. There is no correlation between the radiological findings and the claimant’s complaints of pain. An alternate way of expressing this is to say that the claimant’s complaints of radiating pain into the limbs, hands and fingers are not explained by the MRI findings.
The medical members of the Panel note the contents of the March 2020 MRI and comment as follows:
(a) there is a reference to disc desiccation at the upper five cervical levels that is the disc between C1 and 2, C2 and 3, C3 and 4, C4 and 5, C5 and 6. Desiccation is drying out of the disc which occurs over time and would be a normal finding for a gentleman of Mr Alshenawa’s age (41).
(b) The finding of C2-3 right sided facet joint arthropathy is also an indication of degenerative changes in Mr Alshenawa’s spine.
(c) The finding of “minimal” and “low-grade” disc bulges at three levels (C3-4, C4-5 and C5-6) do not indicate, on their own, significant trauma and are, in the clinical judgment of the assessors, not unusual findings in the general population.
The medical members of the Panel note the contents of the July 2021 MRI which now shows mild facet joint arthropathy at multiple levels (not just C2-3 as reported in February 2020) including C4-5, C5-6 and C6-7 on the left side and C2-3, C 4-5, C5-6 and C6-7 on the right. This is, in the clinical judgment of the assessors an indication of the progression of the claimant’s degenerative condition. The Panel notes the conclusion of “No definite root impingement”.
The finding at C6-7 in February 2020 of a “right paracentral annulus tear and focal disc protrusion with mild flattening of the right hemicord. No nerve room compression” is to some extent replicated in the July 2021 which refers to “Tiny” annulus tears and “minimal cord flattening at C6-7”.
After a thorough history and examination of Mr Alshenawa, the medical members of the Panel, were not satisfied, that the radiological findings are any more than incidental findings, commonly found in person’s in Mr Alshenawa’s age group. Primarily because:
(a) there were no signs of acute injury. The claimant left the scene of the accident and either walked home or was driven home by his wife and pain came on slowly and later. The medical members of the Panel would expect that if there was an acute disc bulge or tear, the claimant would have felt sudden strong pain requiring immediate treatment, and
(b) the claimant’s current symptoms (including pain) are generalised and could not be correlated by the medical members of the Panel to the particular findings of the radiology.
The medical members of the Panel note the word "tear" as used by some radiologists has no relationship to time or trauma. Disc “tears” can also be referred to as fissures. More accurately, tears or fissures are pathological defects within the annulus of an intervertebral disc. The circumstances of the accident and the claimant’s history of symptoms do not support a finding that the claimant’s cervical disc tear and protrusion were caused by the accident. It is the clinical judgment of the medical members of the Panel that none of the observed pathologies have a causal connection to the car accident.
CONCLUSION
The Panel is not satisfied that the claimant’s neck injury falls outside the definition of minor injury in s 1.6. Mr Alshenawa has, in the view of the Panel sustained a soft tissue injury in the accident which is a minor injury. The Panel is not satisfied on the information before it that any of the tiny, minimal or low-grade disc bulges in the claimant’s cervical spine are or were caused by the accident.
The Panel is also not satisfied that the claimant’s shoulder or lower back injury falls outside the definition of minor injury.
The Panel’s findings above do not mean that Mr Alshenawa was not injured at all in the accident. The Panel’s findings are that his injuries do not fall outside the statutory definition of “minor injury” contained within s 1.6 of the MAI Act.
It therefore follows that the certificate of Assessor Oates must be revoked.
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