AAI Limited t/as GIO v Hijazi (No 2)
[2022] NSWPICMP 469
•15 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Hijazi (No 2) [2022] NSWPICMP 469 |
| CLAIMANT: | Kamle Hijazi |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 15 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 15 October 2016; dispute as to whether arthroscopic and rotator cuff repair to right and left shoulder caused by accident and reasonable and necessary; Motor Accident Compensation Act 1999; Held – Panel not satisfied claimant sustained rupture of both supraspinatus tendons in the accident having regard to mechanism of accident; unlikely to experience near identical injury to both shoulders and rupture would have been associated with immediate severe pain; Panel finds accident caused aggravation of pre-existing degenerative rotator cuff tears; AAI Limited v Phillips applied; accident need only be material contribution to need for treatment; presence ongoing pain, failure of conservative treatment; opinion of Dr Jones; arthroscopic and rotator cuff repair reasonable and necessary; surgery relates to injury caused by accident where accident aggravated pre-existing degenerative rotator cuff defects. |
| DETERMINATIONS MADE: | MOTOR ACCIDENTS COMPENSATION ACT 1999 Review Panel Certificate THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel affirms the certificate of Medical Assessor Bodel dated 28 March 2022. |
STATEMENT OF REASONS
introduction
Ms Kamle Hijazi (the claimant) suffered injury in a motor vehicle collision on
15 October 2016 (the accident).
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Hijazi under the Motor Accident Compensation Act 1999 (MAC Act).
This dispute is in relation to whether arthroscopic and rotator cuff repair to the right and left shoulders relates to injury caused by the accident and whether it is reasonable and necessary in the circumstances.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 of the
MAC Act. The relevant medical assessment was undertaken on the papers by Medical Assessor James Bodel. He issued a certificate dated 28 March 2022.
An application for review of the medical assessment of Assessor Bodel was lodged on 27 April 2022 within 28 days of the date on which the certificate of Assessor Bodel was made available to the parties.[1]
[1] Section 63(7) of the MAC Act.
On 23 August 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 63(2B) of the MAC Act.
The Personal Injury Commission (the Commission) commenced operation on
1 March 2021 and the Claims Assessment and Resolution Service was abolished by
cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).Under cl 14A(1)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in
cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made after 1 March 2021 the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[3] The President’s delegate referred this application for review to the panel.
[3] Section 63(3) of the MAC Act.
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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 31 August 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded a bundle of documents paginated from pages 1 to 240 and marked AD2. The solicitor for the claimant uploaded a bundle of documents paginated from pages 1 to 541 and marked AD3.
Reports of Dr Home
The Panel notes the reports of Dr Home dated 29 November 2017 and 8 May 2020 were not included in either party’s bundle. However, the Panel also notes Dr Home’s opinion on causation was the basis upon which the surgery was declined by the insurer. The Panel proposes to consider these reports.
Report of Dr McIntosh
The Panel notes this review has been determined together with a dispute relating to permanent impairment, matter No. R-M10436452/21.
The Panel refers to the report of Dr Andrew McIntosh, biomechanical engineer dated 11 June 2021. In the associated permanent impairment review the claimant objected to the Panel relying on the report of Dr McIntosh. The Panel notes that in determining this dispute Medical Assessor Bodel considered the report of Dr McIntosh.
Where both reviews are to be determined together and having regard to the submissions received from the parties in respect of the admissibility of the report of
Dr McIntosh in the associated permanent impairment dispute the Panel notes the report is before the Panel but does not propose to afford that report any weight where:
(a) the expert opinion set out in the report is contested by the claimant;
(b) the Panel is unable to establish whether the evidence relied upon by
Dr McIntosh is sufficient to establish the facts upon which his expert opinion has been based, and
(c) the Panel is tasked to undertake a medical assessment and does not have the expertise to interrogate or assess a biomechanical engineers report.
On 27 September 2022 the Panel agreed an examination was required.
MEDICAL ASSESSMENT UNDER REVIEW
Certificate of Medical Assessor Bodel
Medical Assessor Bodel undertook an assessment on the papers and provided a Certificate dated 28 March 2022.[7] He certified the following treatment related to the injury caused by the accident and was reasonable and necessary in the circumstances:
[7] AD2 p 4.
· arthroscopic and rotator cuff repair to the right and left shoulders, as referred by Dr Hugh Jones.
Medical Assessor Bodel reported on 15 October 2016 Ms Hijazi was stationary at a red light when a car turning left out of Canterbury Road went wide on the curve and struck the front corner of her vehicle, just in front of the “wing mirror” and caused a glancing blow with some sideways impact at that level and into the passenger door.
Medical Assessor Bodel referred to the report from Dr Andrew McIntosh, biomechanical engineer. He noted Dr McIntosh had made “assumptions” in regard to the mechanism of injury and the speed of the vehicles on impact and drawn non-medical conclusions in regard to forces applied and injuries suffered.
Medical Assessor Bodel reported there was a contemporaneous record of injury to the shoulder at the time of the accident in the records of Dr Awada. He noted he was not able to identify any earlier reference to her shoulders.
Medical Assessor Bodel reported Ms Hijazi had pain and stiffness in both shoulders.
He noted Dr Hugh Jones suggested structural injury to both shoulders caused by the accident for which he recommended surgical repair. Medical Assessor Bodel noted the insurer relied upon the opinion of Dr Home who recorded a restricted range of movement in both shoulders but concluded it was not causally related to the accident.
Medical Assessor Bodel also noted that Dr Panjratan was of the view the claimant had significant injury to the shoulders caused by the accident.
Medical Assessor Bodel was satisfied there was sufficient evidence to confirm a direct causal link between the accident and the development of the bilateral retracted rotator cuff tears.
EVIDENCE BEFORE THE REVIEW PANEL
The Personal Injury Claim Form
The Personal Injury Claim Form lists injuries to the head, neck, shoulders, arms, hands, chest, back and psychological injury.[8]
[8] AD3 p 9.
The Medical Certificate completed by Dr Awada on 18 October 2016 describes the injuries as:
“● Neck pain/stiffness;
· Bilateral shoulder pain;
· Mid – low back pain; and
· Reactive anxiety, pressure in ears.”[9]
[9] AD3 p 13.
Treating records
Clinical notes of Dr C K Awada
Ms Hijazi was a patient of Dr Awada before and following the accident.
In the 18 months before the accident the clinical notes of Dr Awada disclose the following:
Date
Summary of clinical record
14 July 2014
Complaint of back pain and right leg pain recorded. Lyrica and Norspan was prescribed.
23 July 2014
Entry “back pain worsens…unable to put up with the pain”.
5 August 2014
Complaint of neck pain and back pain. Dr Awada referred to the CT scans of the cervical and lumbar spine. Ms Hijazi was prescribed, inter alia, Norspan and referred to orthopaedic surgeon Dr Diwan
18 September 2014
An increase in back pain and neck pain was noted. Difficulty mobilizing. Norspan was prescribed
15 October 2014
Back pain and leg pain was recorded.
20 October 2014
Entry reads “neuralgia…multiple joint pain… back pain”.
10 November 2014
Entry reads “back pain worsen”. Norspan and Celebrex prescribed.
8 January 2015
Entry reads “back pain”. Norspan and Mobic prescribed.
24 February 2015
Entry reads “c/o mid – low back pain…to the legs, pain worse on sitting for long periods. Exam tender on lumbar spine, movement ~50% of normal”. Referred for CT scan and x ray and Norspan prescribed.
23 March 2014
Review of CT scan of lumbar spine. Norspan prescribed.
30 March 2015
Entry reads “multiple joint pain”. Lyrica prescribed.
13 August 2015
severe back pain”
16 September 2015
“...cl/t shoulder pain…” Norspan prescribed.
7 October 2015
‘… shoulder pain … worsen… deep irritation…” Norspan prescribed.[10]
15 December 2015
Entry reads “exacerbation of back pain”. Norspan prescribed.
09 January 2016
Back pain recorded. Norspan prescribed.
17 February 2016
Entry reads “neuropathic pain… back pain”. Lyrica and Norspan prescribed.
9 March 2016.
Entry reads “neuropathic pain”. Norspan prescribed.
30 March 2016
Complaints of back pain recorded.
25 May 2016
Back pain & neuropathic pain recorded. Lyrica and Norspan prescribed.
29 June 2016
Entry reads “back pain worse with cold weather, neuropathic pain”. Prescribed Norspan and Lyrica.
13 July 2016
“c/o multiple joint pain”. Norspan prescribed.
[10] AD2 p 112.
Ms Hijazi consulted Dr Awada on 15 October 2016 following the accident. He recorded Ms Hijazi was the driver of a car stationary on Canterbury Rd when hit by another car at high speed. His clinical notes record complaints of neck pain, headache, nausea, bilateral shoulder pain, pressure in the ears, mid-lower back pain and increased anxiety.[11]
[11] AD3 p 27.
Dr Awada report
Dr Awada provided a report dated 3 December 2016.[12] He stated when he saw
[12] AD3 p 14.
Ms Hijazi on 15 October 2016, she advised him of her involvement in the accident and complained of neck pain and stiffness, headaches and nausea, bilateral shoulder pain, feeling of pressure in the ears, mid to low back pain, and worsening anxiety. He stated later she started to complain of left arm pain associated with pins and needles and some numbness. She also complained of low back pain down both legs, with the left worse than the right associated with paraesthesia.
In terms of past history Dr Awada recorded inter alia, a long history of low back pain treated conservatively and intermittent neck pain without involvement of the upper limbs. He stated before the accident the back and neck conditions were quiescent and under good control, but they were severely aggravated by the accident. He also reported no prior history of shoulder injury or symptoms.
Dr Awada diagnosed:
(a) whiplash injury of the neck;
(b) cervical spine discopathy at 2 levels associated with neuropathic pain due to nerve root compromise;
(c) musculo-ligamentous strain and derangement of the lumbar spine lumbo-sacral spine discopathy at 2 levels causing neuropathic pain in the lower limbs due to nerve root compromise;
(d) bilateral shoulder bursitis and tendon tear, and
(e) aggravation of anxiety and depression.
On 9 October 2017 Dr Awada wrote to GIO seeking approval for an MRI of the left shoulder to exclude a tendon or labral tear.[13] He stated:
[13] AD3 p 38.
“Ms Hijazi has been complaining of severe bilateral shoulder pain; the left being worse than the right. She has pain, reduced range of motion and stiffness.”
Report of Dr Rammal of Spine & Co, chiropractor
On 9 March 2016 Dr Rammal provided a report to Dr Awada stating Ms Hijazi had attended that day noting “her chronic history of bilateral neck pain of approximately 15 years duration following MVA”.[14]
[14] AD2 p 237.
Dr Diwan Records
Dr Diwan, Department of Orthopaedic Surgery, St George Hospital in a report to
Dr Giurgius dated 9 August 2010 reported Ms Hijazi had presented with chronic low back pain and neck pain with very occasional transient right leg pain and bilateral arm pain especially on sleeping on and off.[15]
[15] AD2 p 33.
On 9 August 2010 Ms Hijazi completed a questionnaire for Spine Service, Department of Orthopaedic Surgery, St George Hospital. She indicated she had neck pain “most of the time” and numbness or tingling in arm or hand “most of the time”. She indicated the numbness or tingling in arm or hand was “very bothersome”. On a scale of 9 to 10 Ms Hijazi indicated her neck pain rated 8, her right arm pain rated 9 as did her left arm pain.[16]
[16] AD2 p 22.
Following her return from Lebanon Ms Hijazi was reviewed by Dr Diwan on
10 October 2012 when she also complained of neck and left arm pain.[17] Dr Diwan reviewed the CT scan of the neck and suggested a cognitive motor relearning program and, depending on the response, a spinal injection. He stated if all fails an anterior decompression and stabilisation at multiple levels may be required.
[17] AD2 p 74.
In the document titled ‘Patient Information’ diagram dated 17 October 2012 the claimant was asked to indicate pain she was continuously experiencing the insurer notes the claimant identified the pain to her shoulder as ‘worst pain’ (10/10) thus resulting in ‘worst disability’ (10/10) with respect to daily activities.[18]
[18] AD2 p 86.
Clinical records of Physio Interactive[19]
[19] AD3 p 171.
In a report dated 2 November 2017 [20] Patricia Katehos provided the following provisional diagnosis:
[20] AD3 p 162.
(a) whiplash associated disorder Grade II, with referred pain down both arms. Underlying C5/6 osteophyte, left C6 nerve root irritation and C5/6 osteophyte;
(b) discogenic/degenerative lumbar spine, with nerve root irritation of the left exiting L4 and L5 nerve root;
(c) right shoulder full thickness tear supraspinatus and noted subacromial bursitis, and
(d) left shoulder full thickness tear supraspinatus and noted subacromial bursitis.
Ms Katehos recommended referral to a pain clinic due to the chronicity of symptoms and only temporary relief to date. She also recommended a cortisone injection for the right shoulder.
In Allied health recovery request dated 4 December 2017 Ms Katehos reported as follows:
45. “Shoulder
- constant right shoulder pain, “deep” and “dull” ache, with a rating of 4-8/10;
- constant left shoulder pain with a rating of 6-8/10;
- active range flexion 110 degrees PVAS 7/10 abduction, 110 degrees PVAS 7/10
- Hawkins Kennedy: positive
- Neers: positive.”[21]
[21] AD3 p 191.
Ms Katehos provided a further report dated 5 November 2018.[22] She recorded following a cortisone injection Ms Hijazi reported an increase in her bilateral shoulder pain and irritability. She reported she was unable to sleep due to pain.
[22] AD2 p 194 and AD3 p 60.
In a report dated 23 January 2019 Ms Katehos reported pain ongoing in the cervical and lumbar spine from the accident and significant anaesthesia into bilateral hand reducing her ability to perform activities of daily living.[23] Ms Katehos reported pain focused behaviour and depression.
[23] AD2 p 198.
Clinical notes of Punchbowl Medical Centre
There are numerous entries relating to back pain, neck pain or osteoarthritis between
2 January 2007 and 12 October 2017.[24]
[24] AD3 p 266.
In a Centrelink report relating to the provision of a Carer Payment and/or Allowance dated 13 December 2011 Dr Giurgius indicated Ms Hijazi required daily care for medical conditions identified as serious disc disease and below knee left amputation.
On 21 October 2015 Ms Hijazi saw Dr Selim when he recorded complaints of depression, low back pain and neck pain. On 26 September 2016 Ms Hijazi consulted Dr Emily Selim for her “usual prescriptions” for her “long-standing history of back pain”.
On 4 July 2017 Ms Hijazi consulted Dr Selim for low back pain and neck pain and on 29 September 2017 Ms Hijazi consulted Dr Selim for sore head, facial pain, chronic pains, low back pain and stiffness.
Clinical notes of Medical and Dental Centre, Punchbowl (Dr Selim)
These clinical records include numerous complaints of low back pain and stiffness prior to the accident. On 24 September 2012 a reference is made to neck pain and stiffness and on 22 February 2014 Dr Selim records “left upper arm radiculopathy”.[25] There is no complaint of shoulder pain prior to the accident in these records.
[25] AD3 p 414 and 408.
On 7 March 2018 Dr A Selim reported Ms Hijazi’s involvement in the accident stating: “MVA on 15.10.2016 was stationery and another car turned left and hit her car on the driver side, severe low back pain”.[26]
[26] AD3 p 396.
On 27 November 2018 Ms Hijazi consulted Dr A Selim and reported right shoulder pain, neck pain and stiffness. Norspan Patch was prescribed.[27]
[27] AD3 p 395.
On 26 February 2020 Dr A Selim reported the MRI scans demonstrated complete tears of the supraspinatus tendon bilaterally and noted Ms Hijazi was to see an orthopaedic surgeon the following week.[28]
[28] AD3 p 389.
A further consultation with Dr A Selim on 18 March 2020 referred to bilateral shoulder pain and low back pain and stiffness. He reported Ms Hijazi required physiotherapy as recommended by an orthopaedic surgeon. [29]
[29] AD3 p 389.
Reports of Dr Saeed Kohan
Ms Hijazi saw Dr Kohan, neurosurgeon on 23 June 2017. Dr Kohan provided a report to Dr Awada the same day.[30] He reported the following:
[30] AD2 p 203.
“The current issues that she is reporting is pain from the base of the neck radiating to both scapular region and posterior arm and forearm, especially on the left side with associated numbness in the middle and ring finger on the left which is mostly happening at night. She also has constant pain in the lower back with radiation to right buttock, posterior thigh and calf to the ankle.
She has no previous history of any motor vehicle accident but has had lower back pain on and off previously.”
Dr Kohan recommended Ms Hijazi undergo a right S1 peri-radicular steroid injection stating Ms Hijazi had significant chronic spondylotic changes aggravated following the accident. He further stated:
“There is no evidence any acute injury and this is a situation that we commonly observe in individuals developing radicular symptoms as well as chronic neck and back pan following a significant motor vehicle accident.”
On 26 September 2017 Dr Kohan reviewed Ms Hijazi[31]. He reported inter alia:
[31] AD2 p 232 and AD3 p 57.
“She also reports that her axial neck pain associated with occipital headaches have been remaining quite severe with recurrent bilateral brachialgia associated with paraesthesia and numbness in the upper limbs and hands.”
On 7 November 2017 Dr Kohan reviewed the MRI scan and reported Ms Hijazi continued to complain of right sided sciatica with no improvement with conservative treatment including nerve blocks.[32] He recommended surgery, lumbar laminotomy on the right side and nerve root decompression. In his report to Dr Awada, he commented:
[32] AD2 p 234 and AD3 p 55.
“Her neck pain has settled somewhat but she still complained of bilateral shoulder pain and I believe you have arranged for her to have MRI scan of the shoulders with consideration of referral to orthopaedic surgeon.”
On 15 May 2019 Ms Hijazi underwent a lumbar laminotomy and decompression of the right L5/S1 nerve roots under the care of Dr Kohan at St George Hospital.[33]
[33] AD2 p 212.
Reports of Dr Hugh Jones
Dr Hugh Jones provided a report to Dr Awada dated 19 July 2018.[34] He reported
[34] AD2 p 193.
Ms Hijazi had injuries to her low back, neck, and both shoulders when she was T-boned at a red light and hit on the driver’s side door. He reported she continued to have pain in the antero-lateral left shoulder and right shoulder to a lesser degree. He noted the ultrasound demonstrated high grade partial thickness tear of the left supraspinatus and the right side to a lesser degree. He was unclear whether the neck pathology was contributing to the referred shoulder pain or whether she had significant impingement and symptoms from the rotator cuff tear.
In a report dated 13 December 2018 Dr Jones reported Ms Hijazi had no neurological symptoms in her upper extremities but restriction of cervical movement and tenderness on the right.[35] His impression was that whilst there may have been a component of pain arising from the cervical spine there may also exist primary shoulder pathology not yet identified on imaging. He recommended an MRI of the cervical spine and right shoulder.
[35] AD2 p 197 and AD3 p 43.
In a report dated 2 April 2019 Dr Jones reported Ms Hijazi returned with her right symptomatic shoulder. He noted an MRI of the right shoulder showed a “large somewhat retracted tear of her supraspinatus”.[36] Whilst he said he would attempt a repair it might be unsuccessful given the size of the tear. He indicated he was seeking permission for arthroscopic evaluation and right shoulder rotator cuff repair +/- biceps tenotomy.
[36] AD2 p 207 and AD3 p 42.
On 10 May 2019 Dr Jones reported Ms Hijazi had a symptomatic right shoulder with poorly controlled pain and weakness with lifting about shoulder height.[37] He also stated there had been a significant deterioration in her symptoms since the accident but he thought that situation was not unusual with full thickness rotator cuff tears that progress or enlarge in size.
[37] AD3 p 41.
On 3 March 2020 Dr Jones reported Ms Hijazi was recovering from spinal surgery but both shoulders had been a problem. He noted the MRI of both shoulders showed large quite restricted rotator cuff tears. He described her symptoms as disabling and meriting an attempt at repair.[38]
[38] AD3 p 41.
Dr Jones provided a report dated 29 May 2020. [39] He reported Ms Hijazi was quite disabled by bilateral antero-lateral shoulder pain. He diagnosed bilateral full thickness rotator cuff tears on the basis there was no prior history of shoulder problems he concluded that the shoulder injuries were sustained at the time of the “high energy motor vehicle accident”.
[39] AD3 p 521.
Dr Jones reported that because surgery had been delayed the rotator cuff tears had enlarged significantly causing “a significant and irreversible effect on the outcome of intervention in this lady’s long term shoulder function”.
Investigations
CT cervical spine of 23 August 2012[40]
[40] AD3 p 372.
Dr Chadban comments:
“Degenerative disease as described with a focal left paracentral disc osteophyte complex at the C5/6 level abutting and compressing the spinal cord. Prominent left C6 and C7 neural foraminal stenosis with mild right C6 neural foraminal stenosis. Moderate facet joint degenerative disease on the right side at the C4/5 level.”
CT scan of the cervical of 28 November 2016[41]
[41] AD2 p 166.
A CT scan of the cervical spine of 28 November 2016 was reported to show:
“Disc osteophyte complexes at C5/6 and C6/7 levels. Degenerative changes at the uncovertebral joints and facet joints at multiple levels. Central canal stenosis and left neural foraminal stenosis at C5/6 level and C6/7 levels.”
X-ray and ultrasound of the right and left shoulder on 5 December 2016
The claimant underwent an X-ray on 5 December 2016 which demonstrated mild to moderate bony spurring at the greater tuberosity of the right and left humerus.[42]
[42] AD2 p160 and AD3 p 64.
An ultrasound of the right shoulder also on 5 December 2016 was reported to show subacromial/subdeltoid bursitis and a partial width full thickness tear of the supraspinatus tendon.[43] An ultrasound of the left shoulder was reported to show subacromial/subdeltoid bursitis and a partial width full thickness tear of the supraspinatus tendon.
[43] Insurers bundle p 73.
MRI report of the cervical spine of 8 August 2017
In an MRI report of the cervical spine of 8 August 2017 Dr Matthew Lee[44] provided the following conclusion:
[44] AD3 p 59.
74. “1. Left C6—7 severe foraminal stenosis.
75. 2. Central/left paracentral C5-6 disc osteophyte contacting cord but without significant change and also moderate left foraminal stenosis.”
MRI of the right shoulder of 30 April 2019
This report concluded:
“At the right shoulder, there is a large full thickness tear in the anterior and mid portions of the supraspinatus measuring 2.6cm anteroposterior with proximal retraction beneath the AC joint. There is moderate degree of fatty muscle atrophy. There is a partial thickness articular sided tear in the superior and mid portions of the subscapularis measuring 13 to 14mm superior to inferior. There is a moderate degree of muscle atrophy. The infraspinatus is intact. There is subcortical geode in the greater tuberosity measuring 1cm. There is moderate AC joint arthritis.”
MRI of the left shoulder of 1 May 2019[45]
Dr Williams provided the following reports of an MRI of the left shoulder undergone on 1 May 2019:
“Comment: Complete full thickness tear of supraspinatus with retraction. Diffuse tendinotic changes in the rotator cuff elsewhere. AC joint degeneration, glenohumeral joint effusion, bursal fluid and mild supraspinatus atrophy.”
Medico-legal reports
Report of Dr Alan Home dated 29 November 2017[46]
[45] AD3 p 167.
[46] Insurer’s bundle p 465.
Ms Hijazi saw Dr Home at the request of the insurer on 17 November 2017. He provided a report dated 29 November 2017. At the time of the assessment Ms Hijazi did not recall any history of shoulder complaints and very little pain in the neck. She recalled occasional pain in the lower back over five to seven years until shown her medical file when she confirmed she had suffered from chronic lower back pain, investigated by CT investigation, a referral to Dr Diwan and the use of analgesia including Norspan patches and Lyrica prior to the accident. Subsequently she recalled a history of periodic neck pain and a prior motor vehicle accident 20 years earlier resulting in neck and back injuries with continuing back pain.
Dr Home reported Ms Hijazi described neck pain present most days at an intensity of between 5 and 8 out of 10. She reported difficulty sleeping on either shoulder with an exacerbation of neck pain causing her to wake. She reported she sometimes experiences a sensation of numbness in the left middle finger and sometimes wakes with numbness in her hands.
He reported right shoulder pain in the region of the right trapezius muscle and restricted shoulder motion. Ms Hijazi also reported moderate pain in the left shoulder associated with mild restriction of movement.
Dr Home stated Ms Hijazi described constant pain in the lower back, which is variable but more severe on the right side than the left. He reported radiation of pain to the buttocks and variable pain radiating down the back of the right leg as far as the knee and sometimes to the ankle.
Dr Home concluded there was no significant change in the reported findings of the pre accident CT scan of 16 March 2016 with the post-accident CT scan of
28 November 2016.
Dr Home concluded Ms Hijazi sustained the following injuries in the accident:
84. “● soft tissue injury to the cervical spine;
· soft tissue injury to the right and left shoulders, resolved; and
· soft tissue injury to the lumbar spine superimposed upon pre-existing symptomatic degenerative change (chronic low back pain.)”
In relation to her neck complaint, Dr Home found Ms Hijazi had sustained an aggravation of underlying cervical spondylosis. He noted non-verifiable radicular complaints in the left hand. Apart from the finding of reduced sensibility in the left middle finger he found there were no clinical findings of radiculopathy in the left upper extremity.
Dr Home found the back complaint is an aggravation of a symptomatic complaint and that the radicular pain in the right leg was an aggravation of previous neurological symptoms repetitively documented by her treating general practitioner in the medical records. Dr Home noted Ms Hijazi was taking Lyrica to manage neuropathic pain prior to the accident and there had been no benefit from a right S1 nerve root block.
Report of Dr Alan Home dated 8 May 2020[47]
[47] Insurer’s bundle p 481.
Dr Home reassessed Ms Hijazi at the request of the insurer on 8 May 2020.
He reported Ms Hijazi had undergone a right L4/5 and left L5/S1 decompression with decompression of the right side L5 and S1 nerve roots on 15 May 2019 under the care of Dr Kohan. Following recovery from the surgery Ms Hijazi said her symptoms had settled.
Ms Hijazi had come under the care of Dr Hugh Jones, orthopaedic surgeon who had recommended bilateral rotator cuff repair surgery.
Her symptoms at that time included neck pain felt daily as a mild ache in the midline, intermittent numbness in both hands occurring at night. Ms Hijazi also reported mild stiffness of neck motion in all planes, prominent pain and restricted motion of both shoulders. She also reported lower back pain present most of the time and avoided heavy lifting due to both back and shoulder complaints.
Dr Home’s opinion as to diagnosis was unchanged from his earlier report. He reported Ms Hijazi was reporting symptoms of nocturnal hand numbness possibly signalling either emerging C7 radicular complaints or the development of unrelated carpal tunnel syndrome. He found no abnormal neurological clinical findings on examination of the upper extremities.
In relation to the shoulder complaints Dr Home noted the further imaging identified a progression of rotator cuff tears with retraction of the supraspinatus tendons on each side which he concluded reflected a progression of the underlying degenerative changes which were causally unrelated to the accident. In particular, he stated the development of muscle atrophy and tendon retraction on both sides reflected a progression of the underlying degenerative change.
In relation to the lumbar spine Dr Home concluded there was an aggravation of the previous symptomatic complaint and the development of more regular radicular pain in the right leg which he considered was a progression of the established pre-existing, pre-accident pathology.
Whilst Dr Home found restricted shoulder motion, he did not attribute those complaints to the accident but to the subsequent deterioration due to the progression of underlying degenerative changes and assessed a 0% WPI in respect of each shoulder due to the accident.
Report of Dr Vijay Panjratan dated 8 May 2020[48]
[48] AD3 p 423.
Dr Panjratan assessed Ms Hijazi at the request of her lawyers. He obtained a history of previous problems in the neck and lower back but no previous problems in the shoulders. Dr Panjratan reported following the accident Ms Hijazi had neck pain and lower back pain which required increasing dose of analgesia. He reported:
“At that time, she had pain in the base of the neck radiating into both scapular regions and posterior arm and forearm, especially on the left side with associated numbness in the middle and ring fingers on the left which is mostly happening at night. She also had constant pain in the lower back with radiation to right buttock, posterior thigh and calf to the ankle.
There was no previous history of any motor vehicle accident but has had lower back pain on and off previously. She does not feel any weakness but generally finds it quite difficult to function as the pain stops her from doing any significant physical activity.”
On examination Dr Panjratan found cervical movement was reasonable, with some pain on looking down but no marked restriction other than at the extreme range. He concluded that the pain and paraesthesia was in the fingers and likely to be coming from the neck.
Dr Panjratan observed restriction of movement of both shoulders and concluded the need for bilateral shoulder surgery was causally related to the injury on the basis
Ms Hijazi had no problem in her shoulders before the accident and the problems only developed after the accident.
He disagreed with the decision of the Review Panel finding that the lumbar laminotomy and decompression surgery was not reasonable and necessary in relation to the injury sustained in the accident.
Whilst Dr Panjratan had access to the reports of Dr Kohan and Dr Jones it does not seem that he had access to the records of Dr Diwan or the pre-accident clinical notes. He did review the CT scan of the lumbar spine of 16 March 2015, the X-ray of the pelvis and hips of 16 March 2015, and the lumbosacral CT scan of 9 March 2016.
Certificate of Medical Assessor Bodel dated 16 March 2021
Medical Assessor Bodel examined Ms Hijazi and provided a Certificate dated
16 March 2021. He assessed a 23% whole person impairment (WPI). He found that the impairment arose as a consequence of the soft tissue injury to the neck and back and the rotator cuff injuries to both shoulders.
Medical Assessor Bodel reported the accident on 15 October 2016 was a significant impact and soon after the accident Ms Hijazi developed head, neck and shoulder girdle pain on both sides and also lower back pain.
In respect of the left shoulder Medical Assessor Bodel diagnosed subacromial/subdeltoid bursitis; rotator cuff and supraspinatus tendon tears resulting in an 8% WPI of the left upper extremity.
In respect of the right shoulder Medical Assessor Bodel diagnosed subacromial/subdeltoid bursitis; rotator cuff and supraspinatus tendon tears resulting in an 8% WPI of the right upper extremity.
RELEVANT LEGAL AUTHORITY
In accordance with s 58(1)(a) and (b) of the MAC Act a medical assessment matter includes a dispute as to “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
In AAI Limited v Phillips[49] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in section 58(1) of the MAC Act.
[49] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
In Wingfoot Australia Partners Pty Ltd v Kocak Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error”. [50]
SUBMISSIONS
[50] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.
The insurer’s submissions
The insurer provided submissions dated 27 April 2022.[51]
[51] AD2 p 2.
The insurer disputes the conclusion of Medical Assessor Bodel that there were no prior issues with respect to the claimant’s shoulders. The insurer submits in his report dated 9 August 2010 Dr Ashish Diwan noted the claimant “has bilateral arm pain especially on sleeping on an on and off basis”. In a report dated 10 October 2012 Dr Diwan noted that “Kamle also complained of neck pain and left arm pain”.
In the document titled ‘Patient Information’ diagram dated 17 October 2012 the claimant was asked to indicate pain she was continuously experiencing the insurer notes the claimant identified the pain to her shoulder as ‘worst pain’ (10/10) thus resulting in ‘worst disability’ (10/10) with respect to daily activities.
Further, the insurer draws attention to the clinical records of Dr Awada’s surgery which contains an entry dated 7 October 2015 which appears to indicate there was “… shoulder pain … worsen… deep irritation…”.
The insurer submits Medical Assessor Bodel failed to properly consider the claimant pre-accident history of pain and disability in both arms and shoulders including the clinical notes of Dr Diwan and the notes of Dr Awada which noted worsening shoulder pain in October 2015.
Claimant’s submissions
The claimant provided submissions dated 29 June 2022.
The claimant submitted Dr Home did not have the benefit of the radiology relied upon by Dr Jones and by Medical Assessor Bodel and on this basis his opinion should be given little weight.
The claimant submits the complaints recorded by Dr Diwan refers to referred pain rather than any direct causal injury to the bilateral shoulder. The claimant submits there is no evidence of any direct injury or tears to the bilateral shoulder before the accident.
The claimant submits it was open to Medical Assessor Bodel to find evidence of a direct causal injury to the bilateral shoulder against a background of pre-existing shoulder degeneration.
MEDICAL EXAMINATION
Ms Kamle Hijazi attended the medical examination with Medical Assessor Berry on
24 October 2022. An Arabic Interpreter was also present.
Social History
Ms Hijazi stated she suffered from a left below knee amputation. This arose from a shotgun injury 30 years ago although the amputation was performed in Australia. She has been on a Disability Support Pension.
Ms Hijazi confirmed that she is divorced. She has a son and daughter and is currently living in an apartment with her son.
Background
Ms Hijazi stated that she had had two previous motor accidents the first one in 2010 and then in 2012. She is unable to recall the second accident but she knows that from the first accident she suffered chronic neck and back pain. She also indicated that she experienced discomfort in the shoulders which she said came from the joints although this was very minor until she had the 2016 accident.
Ms Hijazi also indicated that there was a further motor accident in 2019 when she hit a 1 m pole that was being used as a signpost. She indicated she suffered no pain as a result of that accident in any area.
History of accident
The accident occurred on 15 October 2016. Ms Hijazi was the driver of a Mazda 3 sedan wearing a seatbelt travelling home from her daughter’s place. She was travelling on Belmore Road and stopped at the intersection of Canterbury Road when a vehicle tried to turn right into Belmore Road from Canterbury and lost control colliding with her vehicle and a number of other vehicles.
Ms Hijazi indicated that she was able to self-extricate. She contacted her son and after exchanging details he drove her home. By that stage, she had pain in her neck, back and in both shoulders and she was therefore taken to her general practitioner,
Dr Awada, who treated her conservatively.
Treatment after the motor accident
Ms Hijazi told me that her neck and back pain was much worse and her shoulder pain changed from occasional pain to constant pain. She came under the care of Dr Saeed Kohan, neurosurgeon, and was admitted to St George Private Hospital in 2019 and underwent decompressive surgery which has significantly relieved her pain.
Current status
At the present time, Ms Hijazi complained of pain in the neck which is aggravated by twisting and turning movements. She also has a feeling of numbness down both arms which affects the front and back of both hands. With regards to her shoulders, she still has pain and stiffness. With regards to her back, the pain has virtually resolved.
Present treatment
At the present time her treatment consists of medication. She is taking Lyrica, Panadeine Forte, Panadol, Nurofen and Voltaren.
Physical examination
Ms Hijazi presented as a woman of short, solid statue who walked without a limp and was able to sit comfortably. She was noted to be 160 cm in height and 95 kg in weight.
Upper extremities
All active movements were measured using a goniometer. Ms Hijazi was able to demonstrate a normal range of movement of both shoulders. She was tender across the front of both shoulders. There was no obvious wasting. Reflexes were intact. There was no unilateral muscle wasting and no dermatomal sensory changes and no evidence of nerve root tension sign.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 180° Extension 50° 50° Adduction 50° 50° Abduction 180° 180° Internal Rotation 90° 90° External Rotation 90° 90°
PANEL FINDINGS
Causation of shoulder condition
In terms of her shoulders, Ms Hijazi admitted that she had pre-existing pain in both shoulders which she said was due to the joints. However, on examination she demonstrated a full range of movement of both shoulders. Reflexes were intact and sensation was normal and there was no unilateral muscle wasting. The claimant did describe sensory changes but indicated they were over the front and back of both hands. Those sensory changes were not present at the time of the examination and did not follow a dermatomal distribution.
Not only did Ms Hijzai have a full range of movement of both shoulders on examination, but the Panel also notes she demonstrated inconsistency of shoulder movements when examined by various medical practitioners over time as demonstrated by the table at paragraph 148.
Further, the Panel did not find there was corroborative clinical evidence of significant shoulder impairment by way of local wasting at either shoulder or restricted rotation of either shoulder such as to determine a rateable impairment for each shoulder condition by analogy.
The Panel notes the ultrasound findings of 5 December 2016 demonstrated a partial width full thickness tear of the supraspinatus tendon of each shoulder, although the 2019 MRI scans demonstrated the claimant had sustained bilateral complete full thickness tears of the supraspinatus tendon with retraction.
Dr Jones first assessed the claimant in July 2018 with the ultrasound findings when he reported the presence of a high-grade partial thickness tear of the left supraspinatus and the right side to a lesser degree. However, when he reviewed the claimant on
2 April 2019, he noted the MRI of the right shoulder showed a “large somewhat retracted tear of the supraspinatus”. On 10 May 2019 he commented there had been a significant deterioration but stated the situation was not unusual with full thickness rotator cuff tears that progress or enlarge in size.
Dr Home noted the further imaging (the 2019 MRI scan) identified progression of the rotator cuff tears which he concluded reflected a progression of the underlying degenerative changes which were unrelated to the accident. He stated the development of muscle atrophy and tendon retraction on both sides reflected a progression of the underlying degenerative change.
On the balance of probabilities, the Panel is not satisfied the claimant suffered a rupture of both supraspinatus tendons in the accident, having regard to the mechanism of the accident which makes it unlikely she would have experienced near identical injury to each shoulder at that time and where such a rupture would have been associated with immediate severe pain. Accordingly, the Panel finds both shoulders were affected by underlying degenerative change as suggested by Dr Home.
Notwithstanding frequent attendances on her general practitioner pre-accident and her panoply of complaints, complaints relating to the shoulders are limited to the Patient Information diagram completed on 17 October 2012, which arguably related to referred pain from the neck, and complaints of shoulder pain on 16 September 2015 and on
7 October 2015.
Having regard to the limited pre-accident complaint of shoulder pain and the contemporaneous complaint of bilateral shoulder pain following the accident and the consistency of complaint thereafter the Panel is satisfied the accident caused an aggravation of the pre-existing degenerative rotator cuff tears.
Shoulder surgery
In AAI Limited v Phillips[52] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in
s 58(1) of the MAC Act.
[52] Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
Notwithstanding the finding of 0% WPI the Panel is satisfied the accident caused an aggravation of the pre-existing degenerative rotator cuff defects.
The Panel is satisfied having regard to the presence of ongoing pain, the MRI scans of each shoulder, the failure of conservative therapy and the opinion of Dr Jones, that arthroscopic and rotator cuff repair to the right and left shoulders is reasonable and necessary in the circumstances.
Further, applying the test of material contribution referred to by Davies J in Phillips the Panel is satisfied that the surgery relates to injury caused by the accident where the accident has aggravated the pre-existing degenerative rotator cuff defects.
CONCLUSION
The Panel finds the following treatment related to the injury caused by the accident and was reasonable and necessary in the circumstances:
· arthroscopic and rotator cuff repair to the right and left shoulders, as referred by Dr Hugh Jones.
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