AAI Limited t/as GIO v Mardini
[2023] NSWPICMP 167
•28 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Mardini [2023] NSWPICMP 167 |
| CLAIMANT: | Anthony Mardini |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 28 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Claimant was a driver in a rear end collision; injuries reported to left and right shoulders, cervical and lumbar spine; practice and procedure; Panel issued a Direction to the parties to file an indexed, paginated bundle of documents; insurer complied; claimant’s solicitor did not file any bundle of documents nor any submissions; Held – original Medical Assessment Certificate set aside; Review Panel issued a new Certificate; claimant’s injuries caused by the motor accident and are threshold injuries (formerly minor injuries); soft tissue injury to the left and right shoulders, cervical and lumbar spine. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated • cervical spine – soft tissue injury; • lumbar spine – soft tissue injury; • left shoulder – soft tissue injury, and • right shoulder – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
On 11 March 2018 Mr Anthony Mardini (the claimant) was the driver of a car on Frederick Street, Ashfield with his wife and daughter as passengers. He was stopped at a red light when his car was rear-ended by another vehicle.
The airbags in the claimant’s vehicle were not deployed. His car was damaged but drivable. The police or ambulance did not attend the accident. The claimant did not go to hospital. He consulted his general practitioner after the accident.
In the Application for Personal Injury Benefits dated 20 March 2018[1], the claimant reported suffering injuries to his: shoulders, neck, and lower back.
[1] Insurer bundle AD1 page 24.
GIO Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Mardini under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Farhan Shahzad issued a certificate dated 28 March 2022 in which he certified that the injuries sustained by Mr Mardini are both minor injury and non-minor injuries for the purposes of the MAI Act.
In this case the insurer has sought a review of the certificate of Medical Assessor Shahzad.
BACKGROUND
At the date of the accident the claimant was 43 years of age and worked as a full-time accounts manager.
On 20 March 2018 Mr Mardini lodged an Application for Personal Injury Benefits.
By letter dated 5 July 2018 the insurer wrote to the claimant advising him of its determination that the injuries sustained by the claimant were minor and therefore the claimant was not entitled to pursue a claim for damages.
The claimant sought an Internal Review of that decision. On 14 August 2018 the insurer issued their Internal Review – Certificate of Determination and Statement of Reasons.[2] This decision affirmed the insurer’s earlier decision that all the injuries suffered by the claimant in the accident fell within the definition of minor injury and that payments of weekly benefits and treatment expenses will cease at 26 weeks.
[2] Insurer bundle AD 1 page 43.
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
ASSESSMENT UNDER REVIEW
[3] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Shahzad who assessed Mr Mardini and issued a certificate dated 28 March 2022.[4]
[4] Insurer bundle AD 1 page 12.
The injuries referred for assessment included: cervical spine, lumbar spine, left and right shoulder.
Medical Assessor Shahzad medically examined the claimant on 4 March 2022. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Shahzad’s diagnosis was based on the history of the accident, mechanism of injury and the clinical and medical imaging findings. He found that the claimant had the following injuries which were caused by the motor accident were minor injuries:
(a) lumbar spine – soft tissue injury;
(b) left shoulder – soft tissue injury, and
(c) right shoulder – soft tissue injury.
Medical Assessor Shahzad also found that the following injuries were caused by the motor accident were non-minor injuries: cervical spine.
Medical Assessor Shahzad’s diagnosis was: soft tissue injury to the cervical spine; soft tissue injury to the lumbar spine – now recovered; right shoulder sprain – now recovered; and left shoulder sprain – now recovered.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Shahzad was lodged within 28 days of the date on which the certificate was made available to the parties.
On 28 March 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that the Medical Assessor had not provided any reasoning for his finding that the cervical spine injury is not a minor injury.[5]
[5] Insurer bundle AD 1 pages 7-8.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides 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 on or 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.[6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI 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.[7]
[7] 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.[8]
[8] 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties dated 8 November 2022 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer filed a bundle of documents.
The Panel issued a Direction to the parties dated 6 December 2022 requiring the claimant to attend a medical examination with a Medical Assessor from the Panel.
The claimant’s solicitor was sent a message by the Commission on 21 April 2023 asking if they intend to make any written submissions or file any documents in compliance with the Panel’s direction dated 8 November 2022. No response was received as at the date of these reasons.
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
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 MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine Clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[9] his Honour Justice Wright stated at [35]:
[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under 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.
6.6Causation 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 judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
EVIDENCE BEFORE THE REVIEW PANEL
Treating medical evidence
Pre-accident treating records
There are few medical records available for the claimant’s medical history prior to 2018.[10] The available medical records disclose that the claimant had a prior motor vehicle accident in 2013 from which he says he fully recovered.
Post-accident treating records
[10] Claimant bundle AD2 pages 145-153.
In his application for personal injury benefits dated 20 March 2018, the claimant stated that the injuries he received in the motor vehicle accident were: sore neck, shoulders and lower back.
There are few medical records available for the claimant’s medical history after the accident. In certificates of capacity dated 2 April, 7 June and 30 June 2018 from his treating general practitioner (GP) Dr Malek, the claimant was diagnosed with cervical, thoracic and lumbar injuries and bilateral shoulder injuries.
REVIEW OF THE RADIOLOGY
The radiology reports summarised below are referred to in the reasons of Medical Assessor Shahzad.
CT report of the cervical spine reported by Dr Kenneth Cooke on 24 March 2018 states: “No recent injury is seen. There is an old compression fracture of the 5th cervical vertebral body. There is marked chronic disc degeneration at C5/6 and C6/7 with osteophytes along the disc margins at each level and a broad posterior disc bulging at C6/7 causing marked narrowing of the central canal which may compress the spinal cord.”
CT report of the lumbar spine reported by Dr Kenneth Cooke on 24 March 2018 states:
“Scans were done from the twelfth thoracic vertebra down beyond the mid sacrum. There is no sign of fracture or vertebral body compression. There is no evidence of disc herniation or significant disc bulging. There is normal posterior convexity at L5/S1 disc. At L5/S1 there is lipping of the vertebral body margins encroaching into the exit foramina particularly on the right with marked narrowing of the right exit foramen which would compromise the exiting right 5th nerve root. Both sacroiliac joints appear normal.”
Ultrasound report of the left and right shoulder reported by Dr Kenneth Cooke on 24 March 2018 states: “There is a marked subacromial bursitis at the right shoulder and marked subacromial/subdeltoid bursitis at the left shoulder.”
X-ray report of the lumbar spine reported by Dr Pon Ketheswaran on 8 February 2020 states: “The intervertebral disc spaces are preserved. No focal bony abnormality is identified.”
X-ray report of the pelvis and bilateral hips reported by Dr Pon Ketheswaran on 8 February 2020 states: “Both hip joints arc enlocated. No osteoarthritis seen in the hip joints. The sacroiliac joints appear unremarkable.”
X-ray report of the cervical spine reported by Dr Pon Ketheswaran on 8 February 2020 states: “There is loss of the cervical lordosis. The intervertebral disc spaces are preserved. There is no abnormal prevertebral soft tissue swelling.”
CT report of the lumbar spine reported by Dr Murli lyer on 8 August 2020 states:
“Spondylotic changes with multilevel annulus bulging. Short broad based posterior disc protrusion at L5/S1 indenting the thecal sac. Very shallow right paracentral broad-based protrusion at L4/L5 indenting the thecal sac. No convincing features of neurocompressive disease at the present time. No canal stenosis.”
CT report of the lumbar spine reported by Dr Prasad Kundum on 8 November 2021 states:
“1. Mild to moderate posterior disc bulges at L3/4, L4/5 and L5/S1 disc levels but no central canal stenosis identified. 2. A moderate sized posterior disc bulge at L5/S1 level is abutting/ impinging on descending S1 nerve roots within the lateral recess more on the right side. 3. There is a contact / partial impingement of exiting L5 nerve roots bilaterally. The remainder of the lumbar nerve root exit normally.” 4. Moderate L5/S1 and mild L4/L5 facet joint osteoarthritic changes identified. Very mild sacroiliitis changes bilaterally.”
CT scan of the cervical spine reported by Dr Farhana Younis on 14 February 2022 states:
“Broad based disc osteophyte complex at the C6/C7 level causing bilateral neural foraminal narrowing and compression of both exiting C7 nerve roots. Broad based disc osteophyte complex at C5/C6 level causing bilateral neural foraminal narrowing and compression of both exiting C6 nerve roots. Right sided facet joint arthropathy at C3/C4. Left sided facet joint arthropathy at C4/C5.”
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors did not provide any submissions or bundle of documents in response to the Panel’s direction dated 8 November 2022.
The only submissions received by the Commission were made to the President’s delegate dated 14 September 2022 in support for an application for review to a review panel.[11] The claimant submitted that the insurer’s application for review must fail because Medical Assessor Shahzad did consider the medical material that was provided and available before him at the time of the assessment. Medical Assessor Shahzad’s assessment was based on his own clinical examination and findings.
[11] Claimant’s submissions R 1.
Insurer’s submissions
The insurer did not provide further written submissions to the Review Panel but relied upon its earlier submissions to the President’s delegate 20 April 2022.[12]
[12] Insurer bundle AD 1 pages 1-6.
The insurer submitted that the Medical Assessor had failed to give sufficient reasons to explain his findings and to properly assess the minor injuries in accordance with the Motor Accident Guidelines.
The insurer submits that there is ample evidence that the claimant’s cervical spine injury is a soft tissue injury and therefore should be classified as a minor injury and does not meet the criteria of a non-minor injury in accordance with the MAI Act, Guidelines and Regulations.
MEDICAL EXAMINATION
Mr Mardini attended the medical suites at the Commission on 29 March 2023. He was unaccompanied. The examination of Mr Mardini was conducted by Medical Assessor Moloney.
Pre-accident history
Mr Mardini was working full-time as an accounts manager for healthcare the time of the accident. He is married and lives with his wife and 2 teenage children. There was a past history of an accident in 2013 when he had low back pain but states that he fully recovered after physiotherapy. Prior to the accident, he played casual sports such as tennis.
History of motor accident
Mr Mardini was the driver of his car which included his wife and children. He was stationary when hit from the rear. He was wearing a seatbelt at the time but airbags were not deployed. The ambulance and or police officers did not attend the scene of the accident. He was able to get out of the car and exchanged details with the other driver.
History of symptoms and treatment following the accident
Mr Mardini consulted his GP, Dr Malik the day after the accident who organised an X-ray and physiotherapy treatment. At that time, he had low back pain, neck pain and pain in the left shoulder region. He was not referred to any other doctors for treatment.
There have been no further injuries sustained since the motor accident.
Current symptoms
Mr Mardini has a constant central low back pain which radiates into the posterior thighs with standing and often wakes him at night. The legs are otherwise asymptomatic. He has stiffness in the neck and in the last eight months states that when he rotates to the left he gets a sharp lightning like shooting pain up the side of his head which lasts about 10 seconds the neck pain increases with sitting at the office computer. Both arms are otherwise asymptomatic. He feels the shoulders have improved with physiotherapy.
He is able to walk freely and drive short distances but avoids longer distances due to fatigue in the neck and stiffness. He now states that he catches the train to work in the CBD. He plays some games with his son and does some gardening but no other active sports undertaken at present.
Current treatment
Present medication is Nurofen two tablets three times per week and occasionally Voltaren with increased pain. He consults his physiotherapist once per week which is self-funded but has no chiropractic treatment at present. He consults his GP when necessary.
Clinical examination
Mr Mardini walked into the examination room with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height is 171cm and weight 91.7kg.
Cervical spine
On inspection of the cervical spine there was a normal contour with slight kyphosis in the upper thoracic region. On testing range of movement, flexion/extension was to full range and rotation and side bending was 80% of expected range with no asymmetry. On palpation there was no tenderness and no guarding or spasm noted in the cervical musculature.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 31 cm bilaterally (10cm above the olecranon process) and at the maximum circumference of the forearm 29 cm bilaterally.
Shoulders
On inspection of the shoulders no muscle wasting was apparent with no tenderness on palpation and no crepitus on passive movement. Impingement tests were negative. Active range of movement was measured using a goniometer and repeated with a full pain free range of movement noted.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 180° Extension 50° 50° Adduction 50° 50° Abduction 180° 170° Internal Rotation 80° 90° External Rotation 90° 90°
Lumbar spine
Mr Mardini walked with a normal gait and was able to walk on his heels and toes. He could squat normally. On testing range of movement there was a full range of flexion/extension and side bending. Straight leg raise when lying 70° on the left and 80° on the right and 80° bilaterally when seated with negative sciatic nerve root tension signs. On palpation no guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 45cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 40cm bilaterally.
No X-rays are available for inspection although he did provide a report of a CT of the cervical spine dated 14 December 2022. This reported multilevel mild-to-moderate disc bulges with disc bold osteophytes complex throughout the cervical spine resulting in mild right C4, bilateral C6 and bilateral C7 impingement. There is a suggestion of mild canal stenosis at C5/C6 and mild right facet joint arthropathy at C3/4 and bilateral facet joint arthropathy at C4/5.
Diagnosis and comments on examination
It is reasonable to accept that the subject motor accident caused soft tissue injuries to the cervical spine, lumbar spine and both shoulders. The shoulders are now asymptomatic and therefore have resolved.
All of these injuries would be classified as minor or threshold injuries.
CONSISTENCY
At the medical re-examination with Medical Assessor Maloney the claimant gave a history which was consistent in presentation and on repeat testing of ranges of motion. He presented to the Medical Assessor in a straight forward manner without embellishment.
PANEL DELIBERATIONS
The Panel now briefly summarises findings and reasoning for each of the injuries referred to it for review.
CONCLUSIONS
Diagnosis and causation
Cervical spine injury
Based upon the medical evidence and medical reports together with the re-examination by the Medical Assessor Moloney, there is no evidence of cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There is also no evidence of non-verifiable radicular complaint.
There is no muscle spasm, guarding or wasting.
Although there was some inconsistency in active movements of cervical spine, and there may be some restriction in movement of cervical spine, clinically there was no asymmetrical restriction (dysmetria).
Considering the history and complaint, it is possible there was soft tissue injury to cervical spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury. The Panel notes the CT report of the cervical spine dated 14 December 2022. This reported multilevel mild-to-moderate disc bulges with disc bold osteophytes complex throughout the cervical spine resulting in mild right C4, bilateral C6 and bilateral C7 impingement. There is a suggestion of mild canal stenosis at C5/C6 and mild right facet joint arthropathy at C3/4 and bilateral facet joint arthropathy at C4/5.There is no evidence of dysmetria, spasm or radiculopathy. None of these reported findings fulfil the criteria for not being a threshold injury. The findings in the CT report are likely to be degenerative changes unrelated to the motor accident.
Therefore, the Panel assessed the cervical spine injury as a soft tissue injury and thus a threshold injury.
Lumbar spine injury
Based upon the medical evidence and medical reports together with the re-examination by the Medical Assessor Moloney, there is no evidence of lumbar radiculopathy. Using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence of non-verifiable radicular complaint.
Considering the history and complaint, it is possible there was soft tissue injury to lumbar spine.
Although there was some inconsistency in active movements of lumbar spine, and there may be some restriction in movements of cervical spine, clinically there was no asymmetrical restriction (dysmetria).
Therefore, the Panel assessed the lumbar spine injury as a soft tissue injury and thus a threshold injury.
Left and right shoulder injury
Considering the circumstances of the accident, it may be possible that the claimant sustained some soft tissue injury to the shoulders. The claimant complained soon after the accident of pain in one or both shoulders. His complaints are documented in the GP notes.
Furthermore the physical findings of both shoulders demonstrate an almost full and normal range of movement and are consistent in formal examination.
An Ultrasound on 24 March 2018 of both shoulder shortly after the motor accident shows a marked subacromial bursitis at the right shoulder and marked subacromial/subdeltoid bursitis at the left shoulder. There is no labral or rotator cuff tear or other injury or fracture evident.
Therefore, the Panel assessed the injury to both shoulders as a soft tissue injury and thus a threshold injury.
The shoulders are now asymptomatic and therefore have resolved.
As a result of these findings, the Panel revokes the certificate of Medical Assessor Shahzad dated 28 March 2022 and issues a replacement certificate in accordance with these reasons.
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