AAI Limited t/as GIO v O'Loughlin
[2023] NSWPICMP 256
•8 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v O'Loughlin [2023] NSWPICMP 256 |
| CLAIMANT: | Katie O'Loughlin |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| DATE OF DECISION: | 8 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Ho dated 7 December 2021 about injuries being minor or non-minor (now threshold injuries); the MA determined that injuries to the claimant’s cervical spine, lumbar spine and right shoulder were minor; claimant has sought a review of the original decision of the MA; motor vehicle accident on 4 November 2020; claimant alleged radiculopathy but none evident on examination and no signs as specified in clause 5.6 of the Motor Accident Guidelines, Version 9.1 effective date 1 April 2023, and no evidence of non-verifiable radiculopathy; Held – Panel satisfied that the claimant had only suffered soft tissue injuries. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel revokes the decision of Medical Assessor Ho of 7 December 2021. 2. The following injuries caused by the accident; a. cervical spine injury; b. lumbar spine injury, and c. right shoulder injury are minor injuries for the purposes of the Motor Accident Injuries Act 2017 (the MAI Act) |
BACKGROUND
1.Katie O'Loughlin’s (the claimant) solicitor submitted the following was in dispute:
a. right bicep/shoulder – soft tissue injury;
b. neck/cervical spine – C3/C4 disc protrusion with nerve root impingement, C6 vertebrae bone injury, paraesthesia and radiculopathy;
c. lumbar spine – with referred pain to Lower Limbs and radiculopathy, and
d. bilateral leg injuries – soft tissue with neurological symptoms.
The insurer responded to this and said that upon review of the available medical evidence and the claimant’s submissions, the areas in dispute appeared to be:
a. right bicep/shoulder, and
b. neck/cervical spine.
The dispute came before Medical Assessor Ho (the Medical Assessor) for assessment. The Medical Assessor concluded that the following injury was caused by the accident;
a. lumbar spine injury
is a minor injury for the purposes of the Act.
The Medical Assessor also concluded that the following injuries caused by the motor accident:
a. cervical spine;
b. right shoulder injury
are not a minor injury for the purposes of the Act.
The insurer has sought a review of the certificate and reasons of the Medical Assessor.
On 28 February 2022 the President’s delegate referred the medical assessment of the Medical Assessor to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in this application.
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 decision maker. A ‘new decisionmaker’ 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 provisions apply. The new review provisions provide at s 7.26(5) of the Motor Accidents Injuries Act 2017 (the MAI Act) that a review panel consists of two medical Medical Assessors and a member assigned to the Motor Accidents Division of the Personal injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a medical Medical Assessor – see s 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 the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this direction.
LEGISLATIVE BACKGROUND
Jurisdiction
The claimant’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-minor injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor 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 (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 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.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.”
The accident
The claimant was injured in an accident on 4 November 2020.
The claimant was driving her car along Crown Street Wollongong at approximately 1.30pm in a south westerly direction, towards an intersection. The claimant was facing a green traffic control light as she approached an intersection of the Princes Highway and Mt Kiera Road. The claimant says that the driver of the insured car entered the intersection against a red traffic control light facing him and a collision occurred.
Does the claimant have radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in minor injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 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 ...
(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.”
For the claimant’s injury to fall outside the definition of minor injury in s 1.6, she would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
Insurers Submissions
The insurer says that the following injuries were in dispute as part of the ‘minor injury’ Internal Review:
a. cervical Spine;
b. right bicep/shoulder, and
c. lower back/lower limbs.
In the original minor injury dispute the insurer sought to rely on the following additional information:
Wollongong Hospital medical records received 8 July 2021
“i. History: MVA at 50-60km/hr, another (car) hitting patient’s car, right front side. Patient has Cervical Spine tenderness extending to Right Trapezius and tingling to Right Hand. Left Rib/Flank pain. Pins and needles down Bilateral Legs.
ii. Examination:
1. GCS 15, alert and orientated. Maintaining own airway. Chest anteriorly clear. Abdomen SNT (soft non-tender). BS present. Tender left Flank. Log rolled with reg Amir present Tender over CB. Generalised tenderness over Thoracic and Lumbar Spine with paraspinal tenderness.
2. Neurological examination: CN intact. Upper Limbs: power 5/5 throughout bilaterally, normal sensation, co-ordination intact. Lower Limbs: power 5/5 throughout bilaterally, sensation intact, Bilateral Patella reflexes, downgoing plantars bilaterally.
3. Tertiary: HEENT: NAD; Cervical Spine: generalised paraspinal tenderness, no focal midline tenderness, able to freely move head; Chest: equal air entry, no focal tenderness; Abdomen: SNT; Pelvis: NAD; Spine: generalised paraspinal tenderness, worse in Lower Back; Limbs: NAD, no objective neurology.
iii. Consultation information: no significant injuries identified. Patient wanting to go home. Initially complained of Neck and Back pain and tingling in Both Legs and Right Arm – most symptoms have now resolved and just aching all over.
iv. Investigations:
1. X-Ray Chest: Heart size normal. The Lungs are clear. There is no contusion or pneumothorax.
2. X-Ray Thoracic Spine: The Thoracic Spine shows normal alignment. There is no fracture of the Thoracic vertebral bodies.
3. X-Ray Lumbosacral Spine: Alignment of the Lumbar Spine is within normal limits. There is no evidence of Lumbar crush fracture. No discrete bony lesion.
4. X-Ray Pelvis: There is no fracture of the femoral neck or the pubic rami.
5. CT Cervical Spine: The Cervical Spine shows normal alignment. The Cervical facets do not show evidence of subluxation or dislocation. There is no evidence of fracture line. No fracture identified”.
Regarding the neck/cervical spine, the insurer says that a CT scan and X-Ray of the cervical spine were undertaken during the claimant’s admission to hospital and no acute injury was found.
The insurer says that a bone scan was undertaken on 15 March 2021 which showed a very mild focal uptake in the anterior aspect of C6, which was noted to be unlikely of any clinical significance, although it was stated to possibly represent a very mild bone injury. There was no other focal abnormality seen which could account for the claimant’s symptoms.
The insurer also refers to an MRI scan of the cervical spine which was undertaken on 17 March 2021, four months post injury, which identified the presence of a small broad based right posterolateral disc protrusion at C3-C4 level causing moderate foraminal stenosis and mild to moderate nerve root impingement. The insurer says that there was no cord compression or canal stenosis at any levels. The insurer submits no bone injury was found either.
The insurer says that the claimant’s general practitioner (GP), in the clinical notes provided by the claimant’s solicitor, has not provided any evidence that the claimant is suffering from two or more clinical signs of radiculopathy as required by the Guidelines. Further, the GP has not diagnosed the claimant with radiculopathy in the Certificate of Capacity that was issued on 23 March 2021.
The insurer says that the claimant was diagnosed with a disc protrusion at C3/C4 by her GP with no verifiable radiculopathy signs arising from injury to or impingement of specific cervical spinal nerves being assessed or noted. The insurer says that there is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the Neck as a direct result of the subject accident.
With regard to the claimant’s right bicep/shoulder, the insurer says that the claimant did not complain of an injury to her right shoulder although reported tingling in the right arm. Examination of the upper limbs revealed normal power and sensation. No investigations were undertaken of the right bicep/shoulder during the claimant’s admission to hospital.
The insurer notes that Dr De Havilland, whom the claimant saw on the recommendation of her solicitors, diagnosed her with biceps tendinitis of the right shoulder. The insurer submits that this diagnosis is not supported by the ultrasound, although regardless, it would fall within the definition of a ‘minor injury’ per the Guidelines.
Regarding the lower back/lower limbs, the insurer says that the claimant alleges she has sustained an injury to her lower back which includes radiculopathy. The insurer submits clinical records of Dr De Havilland, provided by the claimant, do not include any report of any neurological symptoms nor any complaint of injury to the lumbar spine as a result of the subject motor vehicle accident.
The insurer submits that the Medical Assessor’s assessment is incorrect in a material respect, particularly in regard to the minor injury determination of radiculopathy in the cervical spine and non-minor injury to the right shoulder.
The insurer submits that the Medical Assessor has failed to give sufficient reasons to explain his findings in relation to the diagnosis, history and clinical examination, in particular the diagnosis of the cervical spine.
The insurer submits that the Medical Assessor has failed to give sufficient reasons to explain his findings in relation to the diagnosis, history and clinical examination, in particular the diagnosis of the right shoulder.
The insurer says that the Medical Assessor concluded that the claimant sustained an injury that was not a minor injury for the purpose of the MAI Act in relation to the cervical spine. In doing this, the insurer says that the Medical Assessor has provided a diagnosis of a cervical spine prolapsed disc which is causing radiculopathy with neck stiffness and pain. However, the insurer notes on pages 3-4 of the Medical Assessors certificate, the examination findings were limited to the following:
“…muscle spasm especially on the right side. There was asymmetrical loss of movement. All movement(s) including rotation, sideward flexion to the right was significantly restricted to about 25%. Rotation and side ward flexion to left side also impaired to about 50%. Flexion and extension cut down to about 50%. Neurological examination of the Upper Limb (were) normal in terms of motor power, sensation and reflex. I cannot document any obvious muscle wasting”.
The insurer noted the imaging reported by the Medical Assessor with respect to the cervical spine, included a bone scan dated 15 March 2021 which was “relatively insignificant” and an MRI report dated 17 March 2021 which showed “C3/4 prolapsed disc posterocentral and more to the right probably impinging on the C4 nerve root causing the chronic pain in the neck with stiffness…”.
The insurer notes that the examination findings did not include any verifiable radiculopathy signs arising from injury to or impingement of a specific cervical spinal nerve. The insurer further noted that for the claimant’s cervical spine injury to be considered not a minor injury for the purpose of the Act, there should be “…evidence of a fracture, complete or partial rupture of tendons, ligaments or cartilage in the cervical spine”. Whilst the insurer noted that the MRI report dated 17 March 2021 identified the presence of a prolapsed disc, the insurer submitted that this does not meet the requisite criteria.
The insurer submitted that the imaging reported by the Medical Assessor, with respect to the right shoulder included an ultrasound report dated 17 March 2021 which was “normal”. The insurer submits this suggests there is no pathology in the right shoulder that would indicate a torn ligament or tendon which would be required to support it being an injury that was non-minor for the purposes of the MAI Act.
The claimant’s submissions
The claimant submitted originally that she experienced significant symptoms following her accident on 4 November 2020, including paraesthesia to her upper limb together with pain in the neck and lumbar spine.
The claimant submitted that whilst initial investigations performed at the hospital rendered no results, her symptoms continued, and she was referred by her GP for further investigation. Most notably, pathology was identified in the cervical spine. That pathology was noted, inter alia, to include the foraminal stenosis and impingement on the nerve roots.
The claimant submitted that while the right shoulder ultrasound showed very little pathology, if anything, this indicated that the source of the symptoms and ongoing paraesthesia were most likely to be caused by the nerve root injuries as identified by the MRI scan. The claimant submits that the presence of such pathology together with the claimant’s reported symptoms, indicates the presence of radiculopathy.
The claimant says that the insurer has regarded the disc prolapse incorrectly as a disc bulge. The claimant says that insurer has based its submissions on there only being a nerve root injury without radiculopathy.
The claimant says that a bulging disc is a condition in which the entire disc becomes compressed and bulges out of its place. The claimant says further that in that condition, the nucleus inner portion of a spinal disc remains contained within the annulus fibrosis which is the outer portion. The claimant says that this is different to a prolapsed disc in which the nucleus leaks out of the disc. The claimant says that a prolapsed disc, which is also referred to as a herniated disc, is a condition in which the annulus fibrosis of the vertebral disc is torn, enabling the nucleus to herniate or extrude through the fibres.
The claimant further submits that the area of injury to the lumbar spine appears to have been inadequately investigated. The claimant says that given her symptoms, there is possibility that such symptoms represent the presence of radiculopathy in that region of the spine.
The claimant relies on clause 5.8 of the Guidelines which says;
“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’…”
The claimant submits that given the pathology identified by the radiological investigations, together with the symptoms experienced by the claimant, the circumstances warrant an examination by a Medical Assessor to be appointed by the Commission to allow for the clinical assessment to determine the presence of such radiculopathy within the meaning of the Guidelines.
With regard to the insurer’s review application, the claimant submits that there is no material error by the Medical Assessor and that there exists no reason to suspect that the assessment is incorrect in a material respect.
The claimant says that as referred to in paragraph 20 on page 5 of the assessment, the Medical Assessor relied on the MRI of the cervical spine of 17 March 2021 as showing a C3/4 prolapsed disc. That of itself, the claimant submits is a non-minor injury.
Regarding the cervical spine, the claimant submits the Medical Assessor has diagnosed that the claimant “is suffering from cervical spine prolapsed disc which is causing radiculopathy with neck stiffness, pain and right shoulder stiffness”. The claimant says that while the insurer has noted that diagnosis within paragraph 19 of its submissions (A1), the insurer appears to have treated the disc prolapse as a disc bulge. The claimant says that the insurer has based its submissions on there only being a nerve root injury without radiculopathy.
The claimant reiterates that a prolapsed disc (also known as a herniated disc) is a condition in which the annulus fibrosus of the vertebral disc is torn, enabling the nucleus (inner portion) to herniate or extrude through the fibres. The claimant says that the Medical Assessor referred to the prolapsed disc as a lesion and that of itself is a non-minor injury.
The claimant says that the Medical Assessor specifically referred to his examination revealing, inter alia:
(a) significant muscle spasm – especially on the right side;
(b) asymmetrical loss of movement, and
(c) radiculopathy.
Regarding the right shoulder, the claimant submits that in accordance with the principles enunciated in Nguyen v Motor Accidents Authority of NSW & Anor [2011] NSWSC 351, that prolapse has given rise to an injury not only to the claimant’s cervical spine, but also an injury/impairment to her right shoulder.
Medical evidence
When the claimant was first investigated at hospital after driving herself there following the accident, a CT scan and X-ray of her cervical spine and an MRI scan were performed. No acute injury was found.
An MRI scan of the claimant’s cervical spine was undertaken on 17 March 2021. This was four months post-accident. There was no cord compression or canal stenosis. This scan identified a small broad-based right posterolateral disc protrusion at C3/C4.
A bone scan of 15 March 2021 one reported very mild focal uptake in the anterior aspect at the C6 level which was said to be unlikely to be of clinical significance. It was said that this may represent very mild bone injury but there was no other focal abnormality which was seen to account for the claimant’s symptoms.
The GP clinical notes do not identify two or more clinical signs of radiculopathy. The GP has not diagnosed the claimant with radiculopathy from the time of the accident to 23 March 2021.
When the claimant was first investigated in hospital, no scans were taken of the right shoulder. It was not until an ultrasound took place on 17 March 2021 that there was any medical evidence about this. An ultrasound performed on 17 March 2021, indicated that the appearance of the right shoulder was the same as the left. There was no rotator cuff tear and no tendinosis.
Wollongong Hospital notes record complaints of cervical spine tenderness extending to the right trapezius and with tingling to the right hand. There was also left rib/flank pain and pins and needles down both legs. The claimant was noted to have a pain level which she estimated of 8/10 and which was controlled using morphine.
Neither party has relied on any medico-legal evidence. No treating doctors evidence has been relied upon by the claimant.
The claim came before Medical Assessor Ho for determination of whether the claimant had suffered a minor or non-minor injury. Medical Assessor Ho provided a certificate and reasons dated 7 December 2021.
The Medical Assessor noted that the claimant complained of pain in the neck more on the right hand side in the mid and upper neck region radiating down to the right shoulder on the top and on the back. There was loss of movement in the cervical spine. There was significant stiffness in the right shoulder. She complained of numbness going all the way from the neck to the finger tips on the right side on both dorsal and ventral side. There was tremor in the right hand. There was reported to be associated weakness. The claimant reported that the low back pain seemed to be settling down quite well it was just localised in the back in lumbo-sacral junction no radiation. She had received no treatment and had no investigation for the low back.
Medical Assessor Ho examined the right shoulder and found the following range of movement and in comparison to the left shoulder;
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 100° 180° Extension 50° 70° Adduction 50° 180° Abduction 100° will 50° Internal Rotation 70° 80° External Rotation 70° 80°
Medical Assessor Ho said that he believed that the accident caused the problem of the cervical spine prolapsed disc which he said was causing chronic pain in the neck with stiffness, pain and right shoulder stiffness as well as loss of function of the right shoulder. The Medical Assessor reported that “… Back movement is quite satisfactory…I cannot find any neurological deficit in both lower limb…”, therefore the criteria of lumbar radiculopathy, such as muscle weakness, sensory impairment and muscle wasting, were apparently not be satisfied.
Medical examination
The claimant was examined by Medical Assessor Moloney. His examination report and findings follows.
The Panel adopts the examination findings of Medical Assessor Moloney
Pre-accident history
Miss O’Loughlin states that she was in good health prior to the accident and was working as a disability Support Worker. She was working full-time for about 70 hours per week. There was a past history of the motor vehicle accident on 23 July 2020 but she says she fully recovered from this accident. The GP reported low back pain on 7 October 2020 and right shoulder discomfort on 17 November 2018. The right shoulder injury was sustained playing rugby and she was taken to Wollongong Hospital with the negative x-ray at that time. She also states that low back pain in October 2020 was precipitated by dysmenorrhea. However, Miss O’Loughlin states that she had fully recovered and had no impairment prior to the accident on 4 November 2020.
History of accident and subsequent treatment
Miss O’Loughlin states that she was a driver of her car and was T-boned with an impact on the driver side causing her to hit a pole. The other driver failed to stop at the accident scene. She drove to Wollongong Hospital and collapsed in the emergency department. Due to this she was kept overnight and undertaken radiological studies were negative. She initially saw her regular GP who mainly prescribed analgesics. There was a change of GP in March 2021. Dr D Haviland investigated her with bone scans and ultrasounds and an MRI of the cervical spine. This reported a C3/4 prolapse disc.
Initially, Ms O’Loughlin states that she had pain in the right side of the neck which radiated down the right arm with numbness in the fingers and a feeling of weakness in the hand. She was initially prescribed Norgesic which has now ceased.
Current symptoms
At present there is persistent pain in the right side of the neck which increases with quick rotation or raising her right arm above shoulder height. Driving any significant distance also increases the neck pain. The pain radiates into the posterior right upper arm and anterior axillary fold. She continues to get numbness in the fingers of the right third and fourth fingers particularly associated with pins and needles. She has a poor sleep pattern and gets persistent spasm in the right trapezius muscle and upper arm. The low back pain has now fully resolved and her legs are asymptomatic but she feels that the neck pain has become worse.
Current medications
No analgesics are being undertaken at present and she tried melatonin for sleeping without any benefit. She self funds her massages on a fortnightly basis. There are no appointments for any specialists to be consulted.
Clinical examination
Miss O’Loughlin walked into the rooms with a normal gait and sat comfortably during the interview. She states that she is right-handed. Height was measured at 162 cm and weight 96 kg.
Cervical spine
On testing range of movement, flexion/extension was 50% of expected range and side bending and rotation was 70% of expected range bilaterally with no asymmetry. On palpation there was tenderness over the right trapezius muscle and paravertebral muscles in the lower right cervical region. There was also tenderness in the right anterior axillary fold. No guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power and a slight decreased sensation to light touch in the right upper arm which was ill-defined and non-dermatomal. No muscle wasting was apparent with the circumference of the upper arms 33 cm bilaterally (10 cm above the olecranon process) and in the upper arms 27 cm bilaterally (5 cm below the olecranon process).
Lumbar spine
Miss O’Loughlin walked with a normal gait and was able to walk on heels and toes and squat normally. On testing range of movement there was a full range of flexion/extension side bending and rotation. Straight leg raise when lying was 70° bilaterally and sciatic nerve root tension signs were negative. On palpation there was no guarding or spasm 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. There was no muscle wasting with the circumference of the lower thighs 49 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 39 cm bilaterally. There were no signs of non-verifiable radicular complaints in the lower limbs.
Shoulders
On inspection of the shoulders no muscle wasting was apparent and on palpation there was some tenderness over the right acromioclavicular joint and anterior glenohumeral joint. No crepitus was detected on passive movement. Active measurements were measured using a goniometer and repeated three times.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 140°=3 % UEI 180° Extension 40° =1% UEI 60° Adduction 40°= 0%UEI 60° Abduction 140° = 2 % UEI 180° Internal Rotation 80°= 0% UEI 90° External Rotation 90° = 0 % UEI 90°
Cervical spine injury
The Panel accepts that the claimant injured her neck in the accident and has continued symptoms in the cervical spine area. The Panel is comfortably satisfied she has sustained a soft tissue injury to her cervical spine in the accident.
The claimant subsequently had an MRI of the cervical spine on 16 August 2022. The latest MRI of cervical spine shows some osteophyte formation but no reason to support radiculopathy. The report said that no radicular compromise was identified.
There was also a bone scan done on 10 August 2022. This reported there has been internal resolution of the previously described mild uptake in the superior end plate of the C6 vertebral body anteriorly. Altogether these findings would be consistent with a possible bony contusion at that site which has since resolved in comparison to the previous bone scan on 15 March 2021.
The latest MRI scan of 19 August 2022 of the cervical spine shows some osteophyte formation but no reason to support radiculopathy.
Does the claimant have cervical and/or lumbar radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in minor injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 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 ...
(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.”
For the claimant’s cervical spine and lumbar spine injury to fall outside the definition of minor injury in s 1.6, she would need to have two of the above signs for each area. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
Medical Assessor Moloney found no clinical signs of radiculopathy on examination, to come within clause 5 of the Guidelines.
Causation
the circumstances of the accident are the claimant was proceeding through an intersection with the benefit of a green traffic control light. The driver of the insured car into the intersection against a red traffic control light and collided with the claimant in the nature of a “T-bone collision”. The Panel is satisfied that in those circumstances it would be reasonable to accept that the claimant might suffer injuries to her cervical spine, lumbar spine and right shoulder.
CONCLUSION
On the day Medical Assessor Moloney examined the claimant, the claimant did not have radiculopathy of the cervical spine nor the lumbar because, having regard to the criteria in clause 5.6:
(a) loss of or asymmetry of reflexes – all the claimant’s reflexes were present and equal on both sides;
(b) positive sciatic nerve root tension signs are not relevant in assessments of the cervical spine;
(c) muscle atrophy and or decreased limb circumference – there was no evidence of this
(d) muscle weakness – on testing, there was no muscle weakness found by Medical Assessor Moloney, and
(e) reproducible sensory loss anatomically localised to an appropriate nerve root distribution – the claimant complained of loss of sensation over the whole of her arm which did not correspond to an appropriate nerve root distribution.
The Panel is not therefore satisfied that at the time of Medical Assessor Moloney’s examination the claimant satisfies the statutory test of radiculopathy for the cervical spine nor for the lumbar spine.
Medical Assessor Ho also determined that cervical spine and right shoulder injuries were non-minor.
At the time of the Medical Assessor’s examination, he found dysmetria of the cervical spine with no signs of radiculopathy in the upper limbs. He then stated that there was chronic pain with radiculopathy which is not valid. The initial MRI reports are C3/4 prolapse disc but this had resolved in the MRI of 16 August 2022. A disc that bulged and then settled is minor without radiculopathy.
The Panel is of the finding, following clinical assessment and judgment, that the Nguyen principle does not apply as neck movement did not aggravate the shoulder and shoulder movement was not restricted due to pain radiating from the neck. A previous ultrasound of the right shoulder 17 March 2021 was reported as normal with no bone scan changes.
The Panel is satisfied that the claimant has not demonstrated on examination, any signs other than those of a soft tissue injury and has therefore only suffered a minor injury of her cervical spine, lumbar spine and her right shoulder.
There had been a bulging disc at C3/4 reported which had resolved in the MRI on 16 August 2022. No radiculopathy was verified even though Medical Assessor Ho said so but his clinical findings did not support that.
The claimant says that the prolapsed disc represents a lesion and that of itself is a non-minor injury. That is not correct. A bulging disc is sometimes also referred to as prolapsed disc. A bulging disc protrudes outwards but the annulus remains in tact. There is no tear. The claimant’s submission that there is a lesion is not correct. This is a minor injury only.
With the lumbar spine the claimant says that this has caused radiculopathy with bilateral leg symptoms. No radiculopathy was evident in the lumbar spine at the time of examination by Medical Assessor Moloney. There were no bilateral leg injuries at the time of assessment by Medical Assessor Moloney. Assessor Ho reported that “… Back movement is quite satisfactory… I cannot find any neurological deficit in both lower limb…”, therefore the criteria of lumbar radiculopathy, such as muscle weakness, sensory impairment and muscle wasting, were apparently not be satisfied.
The claimant complained that she continues to get numbness in the fingers of the right third and fourth fingers particularly associated with pins and needles. On examination by Medical Assessor Moloney, there was a global decrease in sensation in the right upper arm. Medical Assessor Ho recorded no sensory loss on examination and a global numbness in entire right arm in his symptoms. Both Medical Assessor Ho and Medical Assessor Moloney recorded a non-dermatomal decrease in sensation on history and examination.
DETERMINATION
The following injuries caused by the accident;
a. cervical spine injury;
b. lumbar spine injury, and
c. right shoulder injury
are minor injuries for the purposes of the MAI Act.
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