AAI Limited t/as GIO v Ghabach
[2024] NSWPICMP 535
•2 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Ghabach [2024] NSWPICMP 535 |
CLAIMANT: | John Paul Ghabach |
INSURER: | GIO |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 2 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s vehicle was rear-ended by insured vehicle; where issues in dispute were threshold injuries and permanent impairment; whole person impairment (WPI); re-examination of claimant; Held – injury to the cervical spine and injury to left shoulder were both threshold injuries; cervical spine injury assessed at 5% WPI and left shoulder injury assessed at 5% WPI, for a total of 10% WPI; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26(7) and (9) of the Motor Accident Injuries Act 2017 1. The first issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. 2. The second issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident is greater than 10%. Determinations 1. The Review Panel revokes the replacement certificate of Medical Assessor Philip Truskett dated 21 September 2023 and issues this new certificate. 2. The Review Panel certifies that the following injuries caused by the motor accident: · cervical spine, and · left shoulder, are threshold injuries for the purposes of the Act. 3. The Review Panel determines that the following injuries caused by the motor accident give rise to a whole person impairment that is NOT GREATER THAN 10% (10%): · cervical spine, and · left shoulder. |
STATEMENT OF REASONS
INTRODUCTION
On 9 March 2021, the claimant, John Paul Ghabach, was injured in a motor accident when his car was rear-ended by the insured vehicle.
As a result of the accident, the claimant claimed that he sustained injuries to his neck and left shoulder. He also claims to have developed a psychological injury although that is not relevant for the purposes of the disputes in this matter.
The insurer accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
The insurer accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
On 15 July 2021, the insurer issued a further liability notice to the claimant accepting liability to continue payment of statutory benefits beyond 26 weeks on the basis that he has been assessed as having sustained “a non-minor injury”.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
On 1 June 2022, the insurer issued a further liability notice to the claimant, withdrawing the non-minor (non-threshold) injury assessment. That decision was confirmed by the insurer following an internal review on 19 July 2022.
The claimant also pursued a claim for damages and to that end, made a request for the insurer to concede the permanent impairment threshold.
According to s 4.4 of the MAI Act, an injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[4] Section 4.4 of the MAI Act.
According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for his injuries caused by the accident.
DISPUTES
Two disputes have therefore arisen between the parties as follows:
(a) firstly, whether the claimant’s physical injuries resulting from the accident were threshold injuries for the purposes of the MAI Act, and
(b) secondly, whether the degree of permanent impairment of the claimant’s physical injuries caused by the motor accident is greater than 10%.
To resolve the disputes the claimant made an application for medical assessments of the two matters by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act
Schedule 2, cl 2 of the MAI Act provides both matters in dispute are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”[5] and “whether the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.[6]
[5] Schedule 2, cl (e)of the MAI Act.
[6] Schedule 2, cl 2 (a) of the MAI Act.
Medical assessment matters are determined in accordance with Division 7.5. This means that the matters are determined at first instance by a Medical Assessor [7] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[7] Section 7.20 of the MAI Act.
THE MEDICAL ASSESSMENTS AT FISRT INSTANCE
Both medical assessment matters were referred at first instance to Medical Assessor Philip Truskett for assessment.
Medical Assessor Truskett issued a certificate dated 14 April 2023. Following an application by the insurer for the correction of an obvious error, the Medical Assessor made amendments to that certificate and issued a replacement certificate, dated
21 September 2023.The injuries referred to the Medical Assessor for assessment in both medical assessment matters were described in the following terms:
· Left shoulder - left rotator cuff tendonitis with posttraumatic subacromial bursitis complicated by a frozen shoulder.
· Cervical spine – cervical strain with left C6 radicular pain.
The Medical Assessor found that the following injuries were caused by the accident:
· Left shoulder - frozen shoulder and rotator cuff tendonitis with traumatic subacromial bursitis.
· Cervical spine – cervical strain.
The Medical Assessor found that “cervical spine C6 radiculopathy” was not caused by the accident and further, the “soft tissue injuries to the knees” were also not caused by the accident.[8]
[8] Pages 15-16 of the insurer’s bundle.
Regarding the issue of threshold injury, the Medical Assessor stated the following:
“On examination today, there is no evidence of radiculopathy in either upper limb. In addition, there is no evidence of partial or complete rupture of tendons, ligaments, menisci, or cartilage. On this basis, the injuries sustained would be considered threshold according to the Act.”[9]
[9] Page 16 of the insurer’s bundle.
Despite his finding on examination and that “cervical spine C6 radiculopathy” was not caused by the motor accident, the Medical Assessor concluded that both injuries were not threshold injuries for the purposes of the MAI Act.[10]
[10] Page 17 of the insurer’s bundle.
The Medical Assessor went on to assess permanent impairment and found that the left shoulder injury gave rise to a WPI of 8% and the cervical spine injury a WPI of 5% - resulting in a combined total WPI of 13%.[11]
[11] Page 17 of the insurer’s bundle.
THE REVIEW APPLICATION
On 19 October 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessments to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessments were incorrect in a material respect, having regard to the particulars set out in the application.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Shane Moloney, Medical Assessor Mohammed Assem and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[12]
[12] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[13]
[13] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[14]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[14] Section 7.26(6) of the MAI Act.
Threshold injury
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on 1 December 2017 to 31 March 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[15]
[15] Clause 5.9 of the Guidelines.
Permanent impairment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Guidelines.[16]
[16] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.1.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[17]
[17] Clause 6.2 of the Guidelines.
Causation of injury
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[18]
[18] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury. These provisions are equally of relevance to the issue of causation of threshold injury.
The following observations were made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) the Medical Assessor’s observations that the MRI of the left shoulder performed on 17 September 2021 showed mild tendinosis of the supraspinatus and the anterior aspect of the infraspinatus without rotator cuff tear with same subacromial bursitis, is inconsistent with his finding that the shoulder was a non-threshold injury;
(b) the Medical Assessor’s observations that the MRI of the cervical spine performed on 25 March 2021 showed no evidence of acute injury, canal stenosis, foraminal compromise or disc rupture, is inconsistent with his finding that the “cervical spine, cervical strain” is a non-threshold injury, and
(c) the Medical Assessor’s observation that there “is no evidence of radiculopathy in either upper limb and no evidence of partial or complete rupture of tendons, ligaments, menisci or cartilage” is inconsistent with his findings that the cervical spine and left shoulder injuries were non-threshold injuries.
CLAIMANT’S SUBMISSIONS
The claimant’s submissions in reply may be summarised as follows:
(a) the Medical Assessor’s reasons should be read as a whole and should not be scrutinised upon to discern some inadequacy in the way his reasons are expressed, and
(b) the Medical Assessor had considered the insurer’s arguments and has come to the conclusion, on his expertise and clinical judgment in making a finding of non-threshold injury.
MATERIAL BEFORE THE REVIEW PANEL
The Panel considered all the material filed by the parties. The claimant’s evidence comprised of a bundle of 89 pages and the insurer’s evidence comprised of a bundle of 247 pages.
THE EVIDENCE BEFORE THE REVIEW PANEL
The evidence before the Panel may conveniently be summarised as follows.
Pre-accident medical records
In evidence were the general practitioner (GP) records of the Guilford Road Medical Centre showing a medical history for the claimant dating from November 2002 to the date of the accident.
Upon review of these records the Panel noted a consultation on 22 November 2017 regarding a fracture of the left clavicle, back pain and neck pain.[19]There was a history of back pain for two months in about September 2015 treated with Brufen and Voltaren.[20]
The claimant’s personal injury claim form
[19] Page 51 of the insurer’s bundle.
[20] Pages 57-58 of the insurer’s bundle.
In his application for personal injury benefits dated 29 March 2021, the claimant describes his injuries in the following terms:
“As a result of the injury I have gone through a few stages of pain. Starting from pain in my neck/shoulder/collarbone, to numbness in my hands, to pain in my lower back and legs, and consistent headaches and vertigo. Currently trying to deal with the main strongest pain which is my neck/left shoulder constant pain and constant headaches. The rest are still present and come in waves. I cannot sleep properly anymore and now have become extremely stressed and anxious about my situation and what will happen with my job and the project I was on, as I am unable to work and complete what I needed to.”[21]
[21] Page 8 of the claimant’s bundle.
In a written statement dated 4 May 2021, the claimant stated that as soon as the accident happened, he instantly felt pain in his neck and that it was stiff. When he arrived home, the pain became overwhelming, and his wife drove him to the emergency department at Westmead Hospital.[22]
[22] Pages 15-16 of the claimant’s bundle.
Clinical records of Westmead Hospital
The clinical records of Westmead Hospital showed that the claimant was admitted for treatment on 9 March 2021 and discharged on 10 March 2021. [23]
[23] Page 231 of the insurer’s bundle.
On presentation, the claimant complained of ongoing neck pain, some transient paraesthesia in the arms bilaterally and a slight headache. [24]
[24] Page 233 of the insurer’s bundle.
On examination, there was some tenderness in the left shoulder and pain on abduction and some midline tenderness in the cervical spine. [25]
[25] Page 235 of the insurer’s bundle.
A CT scan of the cervical spine reported no acute fracture, but ligamentous injury could not be excluded. [26]
[26] Page 237 of the insurer’s bundle.
Dr Hany Hanna
In a report dated 13 September 2021, issued at the request of the claimant’s solicitors, treating GP, Dr Harry Hanna of the Guilford Road Medical Centre reported that after the accident, the claimant’s ongoing complaints were severe neck pain referred to the left arm which was accompanied by severe headaches and dizziness, and pain in the left shoulder.[27]
[27] Page 45 of the claimant’s bundle
Guilford Road Medical Centre
The GP records of the Guilford Road Medical Centre showed that the claimant attended many consultations following the accident. Some consultations did not refer to the reason or reasons for attendance. The consultation notes, complaints and observations that referred to the accident may be summarised as follows:
(a) 15 March 2021 – car injury; neck pain;[28]
[28] Page 47 of the insurer’s bundle.
(b) 19 March 2021 – car accident “10-3-21”; stationary car hit from behind; neck pain referred to left arm;[29]
[29] Page 46 of the insurer’s bundle.
(c) 24 March 2021 – headache; neck pain;[30]
[30] Page 46 of the insurer’s bundle.
(d) 29 March 2021 – follow up on MRI cervical spine 26 March 2021; prescribed Panadeine Forte and Naprosyn;[31]
[31] Page 45 of the insurer’s bundle.
(e) 9 April 2021 – joint pain; neck pain, tender and restricted range of movement; prescribed Naprosyn and Panadeine Forte;[32]
[32] Page 45 of the insurer’s bundle.
(f) 15 April 2021 – joint pain; neck pain;[33]
[33] Page 44-45 of the insurer’s bundle.
(g) 23 April 2021 – joint pain; neck pain, tender and restricted range of movement; prescribed Naprosyn and Panadeine Forte;[34]
[34] Page 44 of the insurer’s bundle.
(h) 4 May 2021 – joint pain; neck pain, tender and restricted range of movement; prescribed Naprosyn and Panadeine Forte;[35]
[35] Page 44 of the insurer’s bundle.
(i) 25 May 2021 – joint pain; neck pain, tender and restricted range of movement; prescribed Naprosyn and Panadeine Forte;[36]
[36] Page 43 of the insurer’s bundle.
(j) 19 June 2021 – joint pain; neck pain; tender and restricted range of movement; prescribed Naprosyn and Panadeine Forte;[37]
[37] Page 42 of the insurer’s bundle.
(k) telephone consultation on 22 June 2021 – accident injury; joint pain; neck pain; prescribed Panadeine Forte;[38]
[38] Page 42 of the insurer’s bundle.
(l) telephone consultation on 15 July 2021 – accident injury; joint pain; neck pain; prescribed Naprosyn and Panadeine Forte;[39]
[39] Page 41-42 of the insurer’s bundle.
(m) 20 July 2021 – Back pain; tender, restricted range of movement; accident injury;[40]
(n) telephone consultation on 30 July 2021 – accident injury, prescribed Naprosyn and Panadeine Forte;[41]
(o) telephone consultation on 3 August 2021 – accident injury; prescribed Naprosyn and Panadeine Forte;[42]
(p) telephone consultation on 6 September 2021 – joint pain; neck pain; accident injury; prescribed Naprosyn;[43]
(q) telephone consultation on 7 September 2021 – joint pain; neck pain; prescribed Panadeine Forte;[44]
(r) telephone consultation on 15 September 2021 – neck pain; accident injury; prescribed Panadeine Forte;[45]
(s) telephone consultation on 22 September 2021 – joint pain; neck pain; prescribed Naprosyn and Panadeine Forte;[46]
(t) telephone consultation on 8 October 2021 – neck pain; accident injury; prescribed Panadeine Forte;[47]
(u) telephone consultation on 18 October 2021 – accident injury; prescribed Panadeine Forte, [48] and
(v) telephone consultation on 2 November 2021 – neck pain; prescribed Panadeine Forte.[49]
[40] Page 41 of the insurer’s bundle.
[41] Page 41 of the insurer’s bundle.
[42] Page 40-41 of the insurer’s bundle.
[43] Page 40 of the insurer’s bundle.
[44] Page 39 of the insurer’s bundle.
[45] Page 39 of the insurer’s bundle.
[46] Page 38 of the insurer’s bundle.
[47] Page 37 of the insurer’s bundle.
[48] Page 37 of the insurer’s bundle.
[49] Page 36 of the insurer’s bundle.
Dr Medhat Guirgis
The claimant was referred to orthopaedic surgeon, Dr Medhat Guirgis for further treatment. In a report dated 24 June 2021, Dr Guirgis was of the opinion that there was an injury to the cervical spine in the form of musculo-ligamentous sprain/strain with C5-6 interventional disc involvement, which was causing left C6 radicular irritation. He was of the opinion that there were post-traumatic symptoms of subacromial impingement in the left shoulder caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures, including squashing of the subacromial bursa between the articular surfaces of the head of the humerus and the acromion. [50]
[50] Pages 46-47 of the claimant’s bundle.
Nerve conduction study
On 6 July 2021, a nerve conduction study of the left upper limb performed by consultant neurologist and clinical neurophysiologist, Dr William Huynh, revealed that sensory and motor responses were within normal limits and a normal study without electrophysiological evidence of a C5-8 radiculopathy, plexopathy or neuropathy. [51]
[51] Pages 102-103 of the insurer’s bundle.
Medicolegal evidence
Dr Terry Kwong, consultant physician and rheumatologist, was qualified by the claimant. In his report dated 31 January 2022, Dr Kwong recorded that at the assessment (on the same date) the claimant reported that he developed neck and left shoulder pain immediately after the accident. [52]
[52] Page 19 of the claimant’s bundle.
At the examination, the claimant complained of constant left sided neck pain with pain radiating intermittently to his left thumb, index and middle finger, constant pain in the left shoulder and paraesthesia in the left thumb and middle finger. [53]
[53] Page 20 of the claimant’s bundle.
Dr Kwong’s diagnosis was a cervical strain with left C 6 radicular pain and left rotator cuff tendinitis with post-traumatic subacromial bursitis complicated by frozen shoulder. In his opinion, there were non-threshold injuries.[54]
[54] Page 23 of the claimant’s bundle.
Dr Kwong assessed the injuries to the cervical spine and left shoulder as giving rise to a permanent impairment of 14%. [55]
[55] Pages 26-27 of the claimant’s bundle.
Dr Jonathan Herald, orthopaedic surgeon, was qualified by the claimant. He provided a report dated 7 October 2021.
Dr Herald recorded that the claimant reported that he was looking in his rear vision mirror with his neck twisted to the left side when the collision occurred. He felt constant neck pain and pain radiating down his left arm with some numbness and tingling.[56]
[56] Page 28 of the claimant’s bundle.
Dr Herald was of the opinion that there was a whiplash injury to the cervical spine with C5/6 disc prolapse and non-verifiable radicular complaints to the left upper limb. There was also a left shoulder secondary impingement syndrome and development of chronic pain syndrome. He was of the opinion that these injuries were caused by the accident. [57]
[57] Page 30 of the claimant’s bundle.
Dr Herald reviewed the MRI scan of the cervical spine dated 30 May 2022 and noted that it showed not just disc desiccation but also a herniation of the disc through the damaged annular ring indicating cartilaginous damage to allow the herniation to have occurred and thus is a non-threshold injury. The damaged cartilage by definition is a non-threshold injury.[58]
[58] Page 34 of the claimant’s bundle.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Assem on behalf of the Panel at the Commission’s medical suites on 30 April 2024. The claimant attended the scheduled appointment, accompanied by his wife.
Pre-accident medical history and relevant personal details
The claimant is a 32-year-old mechanical engineer who obtained his bachelor’s degree in mechanical engineering in 2016. While pursuing his degree, he gained practical skills and experience working for a kitchen and wardrobe company. He commenced working with D & E Engineering in 2020. His role required him to supervise a team of engineers and drafters, with frequent on-site duties including taking measurements and overseeing installations of air conditioning systems and piping.
His employment at D & E Engineering was terminated three months after his injury. Last year, he commenced working with Star Group as an electrical engineering contractor, responsible for coordinating the installation of ceiling lighting and electrical systems.
He lives with his wife and three-year-old daughter in a granny flat located on his family's property. His wife works full-time as an accountant. He was actively involved in sports, including tennis, soccer, and competitive Oztag and basketball.
Past history
He sustained a fractured left ankle in 2016 playing state. He was treated conservatively and made a full recovery. He fractured his nose approximately three years ago. There are no other relevant medical or surgical conditions reported.
History of the motor accident
On 9 March 2021, at around 5:20 pm, the claimant was returning home from work in his 2021 Kia Stinger Sedan. He was driving through heavy traffic on Devlin St in Ryde when the vehicles ahead came to a sudden stop. The claimant successfully halted his car, but noticed via his rearview mirror that the trailing vehicle was failing to slow down. This resulted in his car being rear-ended. Fortunately, he avoided a collision with the vehicle in front.
Following the accident, he felt mild discomfort in his neck, though he was initially not overly concerned. The police and ambulance services were not called to the scene. He managed to reattach the car's loose exhaust pipe and drove himself home. However, as his neck pain worsened, his wife took him to Westmead Hospital for further medical evaluation.
At Westmead hospital, he complained of neck pain, headaches and left shoulder discomfort. A CT scan of the cervical spine showed no acute fractures or significant malalignments. A plain X-ray of the left shoulder was normal with no fractures or dislocations detected.
He consulted GP, Dr Hany Hanna at Guildford Road Medical Centre on 15 March 2021.
Dr Hanna prescribed Naprosyn and Panadeine Forte, for pain involving his neck and left shoulder. He later reported numbness and tingling in his left arm, headaches, and dizziness, which also affected his ability to sleep. The tingling in his left arm resolved but he experiences occasionally tingling in his left palm following a flare-up of his condition.
Dr Hanna arranged an MRI scan of the cervical spine on 26 March 2021 that revealed a small broad-based annular bulge at the C5/6 level, which causes only minimal canal narrowing. There was no significant foraminal compromise noted. A CT scan of his brain revealed a suspected meningioma.
He underwent physiotherapy and chiropractic care, which provided temporary relief but did not fully resolve his symptoms. He was also evaluated by Dr Medhat Guirgis, orthopaedic surgeon, who diagnosed him with a musculoligamentous sprain/strain involving the C5/6 intervertebral disc and post-traumatic subacromial impingement in the left shoulder.
An MRI scan of his left shoulder on 17 September 2021 showed mild tendinosis of the supraspinatus and anterior aspect of the infraspinatus without rotator cuff tear. There was some subacromial bursitis. He was referred to Dr Gemma Olsen, a neurosurgeon at Westmead Private Hospital who recommended pain management.
He consulted Dr Nahza, pain specialist, and Dr Alistair Ramchandran, pain specialist, and received a nerve block at Westmead Public Hospital, which temporarily improved the pain in his left upper trapezius and the lateral aspect of his left shoulder. He was advised to have a radiofrequency neurotomy.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant stated that his injuries caused him to become deconditioned and gained weight. In around December 2022, while attempting to go for a jog, he sustained a tear to his hamstring tendon. He also reported bilateral knee pain. He believes that he has a grade 2 hamstring tear. Imaging of his left knee showed a small suprapatellar effusion.
Current status
The claimant complains of constant neck discomfort that he rates as 6-7/10 on the pain scale. The pain is primarily located behind his left ear, radiating to the upper left trapezius, and worsens with rapid cervical rotation. He occasionally experiences numbness in the palm of his left-hand when his symptoms are severe. His left shoulder remains weak and there is discomfort laterally that he perceives to be originating from the cervical spine. He takes simple analgesia when necessary and is currently awaiting a radiofrequency neurotomy.
CLINICAL EXAMINATION
The claimant appeared well and in no apparent distress. He was cooperative during the examination. He walked with a normal gait and sat comfortably during the interview. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury. His height was 172 cm and he weighed
97 kg.
Examination of his neck revealed muscle guarding over the left upper trapezius and tenderness over his left shoulder. Palpation of the left upper trapezius triggered a tingling sensation in his left palms, which is anatomically implausible. Neural tension signs were negative. The circumference of his left forearm was noted to be 0.5 cm less than that of the right, though no significant difference was found in the circumference of his upper arms.
Muscle power and tone were normal across all examined areas. He reported slight sensory loss along the ulnar border of his left hand and forearm. His upper limb reflexes were normal and symmetrical. There was restricted range of motion in the cervical spine as follows:
| MOVEMENTS | RANGE EXHIBITED |
| Flexion | 1/2 |
| Extension | 3/4 |
| Rotation to the right | 3/4 |
| Rotation to the left | 1/2 |
| Lateral bending to the right | 3/4 |
| Lateral bending to the left | 3/4 |
Medical Assessor Assem considered that there was asymmetry of movement and spinal dysmetria. He had a secondary restriction in shoulder motion that appeared to be partly related to localised shoulder pathology and partly originating from the cervical spine. Active range of motion was worse than what would normally be expected and accompanied by pain behaviour in the form of grimacing and vocalisation. The range was relatively consistent on repeated testing as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 160° | 90° |
| Extension | 50° | 50° |
| Adduction | 50° | 30° |
| Abduction | 140° | 90° |
| Internal Rotation | 80° | 80° |
| External Rotation | 60° | 40° |
He had a normal range of motion to both knees without any instability or crepitations. McMurray’s test was negative and there was no muscle atrophy
Determinations
Diagnosis, causation and reasons
The claimant was involved in a motor accident on 9 March 2021, which resulted in injuries to his cervical spine and left shoulder. The immediate post-accident symptoms and imaging findings substantiate a direct causal relationship.
The clinical evaluations suggest the following diagnoses:
Cervical Sprain/Strain with Associated Spinal Dysmetria: This diagnosis is characterized by asymmetrical spinal motion. Although radiological imaging identified a small broad-based disc bulge at the C5/C6 level, this is normally observed in a person of his age group and there was no significant foraminal compromise which typically causes radiculopathy. Aside from sensory loss along the ulnar border of his left hand, the claimant exhibited no other focal neurological deficits, and neural tension signs were negative. Consequently, he did not meet two or more of the criteria for radiculopathy as outlined in the Guidelines (paragraph 6.138, p 108) and was classified as having a soft tissue injury to the cervical spine which is a threshold injury as defined by the MAI Act.
Left Shoulder: Radiological imaging and clinical examinations confirm mild tendinosis of the supraspinatus and anterior aspect of the infraspinatus, along with subacromial bursitis. These conditions contribute to restricted shoulder movement and persistent pain. It is noted that some mobility restrictions were secondarily induced by pain emanating from the cervical spine[59]. However, there was no evidence of complete or partial rupture of tendons, ligaments, or cartilage. Thus, he was also classified as having a soft tissue injury to the left shoulder, which is a threshold injury under the MAI Act.
Knees: The reported injuries to his knees and hamstring, which occurred while jogging, are not related to the motor accident. Furthermore, clinical examinations revealed no significant findings that would warrant an impairment rating.
Lumbar spine: There was a reported injury to the lower back in the claimant’s personal injury claim form. However, there was no complaint of an injury to the lumbar spine at the re-examination today. Furthermore, the Panel notes that there was no injury to the lumbar spine that was referred to the single Medical Assessor for assessment. On that basis, the Panel proceeded on the basis that any injury suffered to the lumbar spine in the accident would have resolved.
Permanent impairment assessment
[59] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
The clinical evaluations give rise to the following assessments of permanent impairment:
Cervical Spine: He has restricted cervical movements characterized by muscle guarding, asymmetry of motion, and spinal dysmetria. According to the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4), these findings are consistent with a Diagnosis-Related Estimate (DRE) Cervicothoracic Category II impairment. This category encompasses conditions with significant motion loss and muscle guarding without radiculopathy, resulting in a WPI of 5% (AMA4, 3/104).
Left Shoulder: For the left shoulder, impairment assessment was conducted using the AMA4 guidelines. The pie charts of upper extremity impairment were utilized to evaluate the loss of range of motion. The claimant has a 12% Upper Extremity Impairment (UEI) (AMA4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45), which converts to a 7% WPI (AMA4, Table 4, 3/20). The right shoulder, considered 'normal' for this assessment due to the absence of symptoms, was used as a comparative baseline.
According to the Guidelines, specifically paragraph 6.51 on page 91, if the contralateral uninjured joint exhibits less than average mobility, the impairment value corresponding to the uninjured joint should be subtracted from the calculated impairment for the injured joint, provided there is a reasonable expectation that the injured joint would have had similar findings before the injury. In this case, the right shoulder had a baseline impairment of 3% UEI, equivalent to 2% WPI, which is subtracted from the left shoulder's 7% WPI, resulting in a final WPI for the left shoulder of 5%.
| Shoulder ROM | Right° | RUEI% | Left° | LUEI% | Normal |
| Flexion | 160 | 1 | 90 | 6 | 180 |
| Extension | 50 | 0 | 50 | 0 | 50 |
| Abduction | 140 | 2 | 90 | 4 | 180 |
| Adduction | 50 | 0 | 30 | 1 | 50 |
| Internal rotation | 80 | 0 | 80 | 0 | 80 |
| External rotation | 60 | 0 | 40 | 1 | 60 |
| Total RUEI | 3 | Total LUEI | 12 |
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen[60] and Insurance Australia Ltd v Marsh.[61]
[60] [2021] NSWCA 287 at [40], [41] and [45].
[61] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of Medical Assessor Assem.
The evidence shows that the claimant consulted his GP on 22 November 2017 regarding a fracture of the left clavicle. He reported back pain and neck pain. There is no evidence of any subsequent complaints to these body regions from that date to the date of the accident. Clause 6.31 of the Guidelines requires a deduction of an impairment in the same region that existed before the motor accident if there is objective evidence of a pre-existing symptomatic permanent impairment in that region at the time of the accident. The Panel is not satisfied that there is objective evidence of symptomatic permanent impairment to either the cervical spine or the left shoulder at the time of the motor accident.
CONCLUSION
The following injuries caused by the motor accident:
· lumbar spine, and
· left shoulder,
are THRESHOLD INJURIES for the purposes of the MAI Act.
Combining the WPI assessments of the Panel for the cervical spine and left shoulder, the Panel makes a finding of a total WPI of 10%. It follows that the degree of permanent impairment of the claimant as a result of the injuries caused by the motor accident is not greater than 10%.
The Review Panel revokes the replacement certificate of Medical Assessor Philip Truskett dated 21 September 2023 and issues a new certificate which is attached to these reasons.
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